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In Re Estate of Weisberg

OPINION FILED JUNE 27, 1978.

IN RE ESTATE OF DORA WEISBERG, INCOMPETENT. — (HARRY WEISBERG, PETITIONER-APPELLEE,

v.

RUTH BRUCAR ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND TRAFELET, Judge, presiding.

MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Petitioner, Harry Weisberg, conservator of the estate of his mother, Dora Weisberg, instituted citation proceedings under section 183 of the Probate Act (Ill. Rev. Stat. 1975, ch. 3, par. 183) against respondents, Ruth Brucar and Albert Brucar, daughter and son-in-law of the incompetent. Respondents filed an accounting which consisted of alleged expenses incurred by or on behalf of the incompetent while she resided with respondents. Petitioner objected to certain expenses listed. Upon trial the court found that respondents violated a fiduciary duty owed to the incompetent and ordered respondents to turn over $36,850 and various items of jewelry to petitioner-conservator. Respondents appeal from the order of the trial court.

The issues presented for review are: (1) whether the trial court had jurisdiction to adjudicate rights of property; (2) whether the trial court improperly admitted incompetent evidence; (3) whether necessary parties to the citation proceeding were improperly omitted requiring petitioner to file a supplemental petition; and (4) whether the judgment of the trial court is against the manifest weight of the evidence. We will consider also a motion filed by respondents to assess petitioner-appellee for costs of compiling the excerpts.

On October 18, 1976, Dora Weisberg (hereinafter Dora) was declared to be physically incompetent, and petitioner was appointed conservator of Dora's estate. On November 8, 1976, petitioner was granted leave to file citation proceedings against respondents Ruth Brucar (hereinafter Ruth) and Albert Brucar (hereinafter Albert) to discover where Dora's money was located and to recover any assets belonging to Dora's estate. After respondents refused to turn over certain property allegedly belonging to the estate, petitioner (hereinafter Harry) filed a petition for a rule to show cause why respondents should not be judged in contempt. Respondents answered and filed an accounting which consisted of alleged expenses incurred by and on behalf of the incompetent while she resided with respondents. A trial was held on the issues of the contested items on the accounting, which included the following: a gift of $10,000 made to Wayne Brucar; cash given to Albert; money paid to an attorney, Mr. Ellis; cash given to Dora by respondents; penalties assessed by several banks for early withdrawal of funds; gifts of carpeting and cemetery plots made to respondents; $10,000 paid to Ruth; money spent for medication for Dora; and the whereabouts of jewelry owned by Dora and money received as social security and medicare payments.

The evidence adduced at trial was as follows: In August 1975 Dora's husband, Samuel Weisberg, died, and Dora went to live with her son Harry and his wife, Phyllis Weisberg. At this time Dora had $42,800 which she and her deceased husband had accumulated during their marriage. The money was put into three separate accounts: (1) $30,000 was deposited in a four-year certificate of deposit at Niles Savings and Loan Association in the names of Dora and Phyllis Weisberg as joint tenants; (2) $12,000 was deposited in a two-year certificate of deposit at Skokie Federal Savings and Loan Association in the names of Dora and Phyllis Weisberg as joint tenants; and (3) $800 was deposited in a checking account at Glenview Trust and Savings Bank in the names of Dora and Harry as joint tenants.

On October 31, 1975, Dora decided to move to the home of Ruth and Albert, her daughter and son-in-law. The certificate of deposit accounts were changed to the names of Dora and Ruth. Phyllis Weisberg's name was deleted. Dora testified that she changed the accounts so that the money would be readily available to her and so that Ruth could withdraw the money in the event she could not get out.

The $30,000 certificate of deposit account at Niles Savings was then closed, and the money was transferred to three separate accounts as follows: (1) $10,000 was deposited at First Federal of Wilmette in the names of Dora and Ruth. This money was withdrawn in early 1976 with a penalty, deposited in a checking account at Bank of Lincolnwood and used to pay bills from the nursing home. (2) $10,000 less penalties was deposited in an account in Ruth's name alone. Ruth testified that in 1968 she had given her father, Samuel Weisberg, $10,000 to help support him, and that the money was being returned to her. Ruth stated that there was no written agreement between her and her father because they were very close. Dora denied that her husband ever received $10,000 from Ruth and stated that the money was part of that which she and her husband had saved during their marriage. (3) $10,000 was deposited at Evanston Federal in the names of Dora and Ruth; the money was subsequently withdrawn on December 19, 1975, and deposited in an account at Northwest Federal in the name of Wayne Brucar as trustee for Ruth. Ruth testified that Dora gave the money to Ruth's son, Wayne Brucar, as a gift to aid him in continuing his education. Dora denied making the gift. The records from Northwest Federal indicated that the account was opened December 19, 1975, and all the money was withdrawn by Wayne from May 28, 1976, to July 1, 1976. Ruth testified that she did not know what Wayne did with the money.

In reference to the two other accounts which Dora had when she went to live with Ruth and Albert, Albert testified that the $12,000 certificate of deposit account at Skokie Federal was transferred to a checking account and used to pay Dora's expenses. The $800 checking account at Glenview Bank was closed, and the money was deposited in one of Dora's other accounts. A total of $1009.24 was assessed as penalties for the early withdrawal of funds from the various accounts, and Harry computed that $5842.31 was lost in interest when Dora's money was withdrawn from the certificate of deposit accounts.

A checking account at Bank of Lincolnwood in the names of Dora and Ruth was used to pay Dora's expenses, several of which were contested by Harry. Fifteen checks for $25 each were made payable to Albert. Dora testified that she had a problem with her bladder, and that when she would have an accident, Albert would charge her $25 and have Ruth write a check for him. Thereafter, Dora did go into the hospital and have surgery on her bladder. Albert testified that he did charge Dora $25 on several occasions because he was trying to use psychology to get Dora to control herself. Albert stated that he cashed the checks but that he put the money in Dora's purse.

Ruth withdrew $3217 in cash from the checking account. Ruth testified that she gave the money to Dora so that Dora could reimburse Harry for payment of the funeral bill of Samuel Weisberg. Dora testified that she never received any of the money in question and never gave $3000 to Harry. Harry testified that the checking account at Glenview Bank was opened in order to pay the funeral expenses of Samuel Weisberg; that the funeral bill was in fact paid from the account and he did not receive $3000 in cash from Dora as a reimbursement. Harry's receipt for payment of the funeral bill was admitted into evidence.

Ruth wrote two checks, one for $300 and one for $500 to an attorney, Mr. Ellis. Ruth testified that the money was to pay for services rendered on behalf of Dora in a proceeding before Judge Delaney in which Ruth and Albert were charged with kidnapping Dora. Dora testified that she did not engage Mr. Ellis to represent her in a lawsuit before Judge Delaney. Martin Klein, an attorney, testified that he performed services for Dora in a suit instituted by Harry against Ruth and Albert for harassment. Mr. Klein stated that he never requested Mr. Ellis to perform any services, that in fact Mr. Ellis represented Ruth and Albert in that action, and to his knowledge Mr. Ellis never appeared before Judge Delaney on behalf of Dora. Albert testified that he did engage Mr. Ellis to represent him and Ruth, but that Mr. Ellis performed other services for Dora such as drawing a will and representing her in a personal injury action.

Albert testified that a sum of $412.50 was paid for Dora's medication. One receipt for $41.25 was presented to the trial court, and Albert contended that $41.25 was paid each month so that a total of $412.50 was paid while Dora resided with him and Ruth. Dora testified that she did not spend $412.25 on medication, and that at most she would pay about $40 at one time for medicine that would last three months.

A check for $300 was written by Ruth to Milmat Carpet. Ruth testified that Dora had ruined the carpeting in Ruth's home and wished to replace it. Dora testified that she never purchased carpeting as a gift to Ruth and Albert.

A check for $214 was drawn by Ruth and made payable to Shalom Memorial as a down payment for two cemetery plots. Ruth testified that it was her father's desire that all members of the family be buried at the same place, and that while her father was living he purchased cemetery plots for Harry and his wife. Ruth stated that when she and Dora went to purchase a headstone for her father's grave, Dora also purchased the two cemetery plots and gave them to Ruth and Albert as a gift in order to carry out the father's desire. Dora testified that she never made a gift of the ...


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