APPEAL from the Circuit Court of Sangamon County; the Hon.
JACK A. ALFELD, Judge, presiding.
MR. JUSTICE HUNT DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 7, 1977.
This is an action brought by the executor of the will of Paul Havey, deceased, to recover the deceased's statutory share upon Paul Havey's renunciation of the will of Myra Havey, his deceased spouse. The executor also seeks to have certain joint tenancy accounts and certain real estate be declared a portion of Myra Havey's estate.
The facts are substantially undisputed. Paul and Myra were married more than 35 years prior to her death by cancer on November 8, 1972. They had no offspring and had marital difficulties. The couple had been living separate and apart for some time prior to the wife's death. Myra Havey had inherited some $40,000 from her family, which she kept in accounts in her own name. Paul and Myra had also received a home purchased by her parents which they later sold and used the proceeds in part payment of another home which they held in joint tenancy. Paul was employed by the State of Illinois and worked regularly up to the time of his death. Myra's expenses with her lengthy illness were paid in large part by Paul's insurance coverage in his employment. The record is silent as to any other support for Myra during the period of separation or as to any other assets which Paul owned.
In March and July 1972, Mrs. Havey converted a checking account at the First State Bank of Springfield, Illinois, to add Frances B. Patton, her sister-in-law and defendant herein, as a person having power of attorney to write checks. In July 1972, she converted a savings account at the bank to a joint account with defendant. She also opened a joint savings account at the Workingmen's Savings and Loan Association of Springfield and purchased a jointly held certificate of deposit at the Sangamon Home Savings Association with defendant as co-owner with right of survivorship. Also, in July, she executed a quitclaim deed to the defendant conveying a remainder interest in the family home while reserving a life estate in herself. The deed was recorded and returned to the grantor's attorney's office, but was never physically delivered to the defendant. Myra then executed her will in July 1972, naming the defendant as executor, ordering her estate to be liquidated and the proceeds after the payment of debts and costs to be divided between her surviving spouse and the defendant. The fourth paragraph of her will stated as follows:
"I have set up certain accounts in joint tenancy with the right of survivorship which are to pass by operation of law and are not to be made a part of my estate."
The inventoried probate estate consisted of the checking account which carried a balance of less than $4,000 plus household goods. This was not enough to pay the costs of last illness, funeral, other debts, and costs of administration. However, the joint account and certificate of deposit held with defendant totaled $47,509.77. The house was sold after Myra's death but the record is silent as to the amount received.
Paul Havey, during his lifetime and within the period prescribed by the Probate Act, filed a written renunciation of the will. After his death, his executor filed this action for declaratory judgment claiming the above described transfers were a sham and a fraud in violation of the marital rights of Paul Havey. The trial court, however, found the deed effective as conveying a remainder interest and reserving a life estate, that no delivery of the deed was necessary, and that no violation of the marital rights occurred. The court also found from the language in the joint tenancy contracts and the evidence that Myra had made an effective inter vivos gift to defendant. Judgment was granted for the defendant.
Turning first to the joint accounts, the signature card contracts contained, in addition to the usual language, the following:
"[F]unds placed in or added to the account by any one of the parties are and shall be conclusively intended to be a gift and delivery * * * to the * * * other party * * * to the account to the extent of * * * their pro rata interest * * *."
Defendant's testimony showed she never contributed any of the funds, that she was not to have the right to withdraw any funds during the lifetime of Myra except to pay Myra's bills, that Myra was aware she was terminally ill at the time of the transfers, that defendant was to receive all of the funds at Myra's death as surviving joint tenant, that it was Myra's intent that her husband should not receive any portion thereof, and that he was an alcoholic, employed and able to sustain himself.
• 1-3 A valid gift inter vivos must be made with intent to vest a present interest. Retaining the right to withdraw the funds, or the possession of the passbook or share certificate, does not overcome such intent. (Frey v. Wubbena (1962), 26 Ill.2d 62, 185 N.E.2d 850.) The marital right of the surviving spouse to a portion of the decedent's estate (Ill. Rev. Stat. 1971, ch. 3, par. 16) may be defeated by a valid inter vivos gift even though the stated intent of the donor is to deprive the spouse of a right to share in the transferred fund. (Haskell v. Art Institute of Chicago (1940), 304 Ill. App. 393, 26 N.E.2d 736; see Milewski v. Milewski (1953), 351 Ill. App. 158, 114 N.E.2d 419.) If there is no present donative intent or a mere testamentary intent, then the attempted gift is simply a sham or a colorable transfer of legal title which will be set aside for the benefit of the surviving spouse. (Toman v. Svoboda (1976), 39 Ill. App.3d 394, 349 N.E.2d 668.) The fraud arises not out of the intent to minimize or defeat the marital right of the surviving spouse, but from the absence of a donative intent.
• 4 Joint tenancies in bank and savings and loan accounts are controlled as provided in "An Act to revise the law in relation to joint rights and obligations" (Ill. Rev. Stat. 1971, ch. 76, pars. 2, 2(a)). It provides for creation of joint tenancies by will or by written agreement. The written agreements here obviously created joint tenancies which were referred to and ratified by the will.
• 5 Present donative intent may be negated by clear and convincing evidence. (See Montgomery v. Michaels (1973), 54 Ill.2d 532, 301 N.E.2d 465.) In the present case, Mrs. Havey was aware of the malignancy. She needed only enough money to sustain herself in her terminal illness which turned out to be a period of about four months. She wanted her sister-in-law to have whatever property she, Mrs. Havey, had brought into the marriage but had kept in her own name. She did not want her husband to have any part of it. She attempted to accomplish this goal by giving the defendant the funds through the creation of joint accounts. The joint tenancy contract acknowledged that there was a present gift. While it is conceded that she did not wish her spouse to have any part of these funds, this in itself does not defeat the present gift. The trial court found from the terms of the agreement and the evidence that there was sufficient ...