APPEAL from the Circuit Court of Marion County; the Hon. JAMES
E. McMACKIN, JR., Judge, presiding.
MR. JUSTICE KUNCE DELIVERED THE OPINION OF THE COURT:
This case concerns the deaths of a married couple, Paul F. Lowrance and Mary Ellen Lowrance, and the question is whether the evidence is sufficient for a finding that one survived the other. Both died on December 6, 1975, apparently from gunshot wounds inflicted by their 13-year-old daughter who was incarcerated at the time of this proceeding. Each had children from prior marriages and left different heirs. The administrator of the estate of Paul F. Lowrance petitioned the Marion County Circuit Court for a declaratory judgment finding that the couple died simultaneously. The administrator of the estate of Mary Ellen Lowrance answered and sought a declaratory judgment finding that her decedent had been the survivor. The declaratory judgment was needed in order to determine heirship in each estate. The Illinois Probate Act (Ill. Rev. Stat. 1975, ch. 3, pars. 41a, 41c) governed the estates' distributions.
"§ 41a. No Sufficient Evidence of Survivorship.) Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this Article."
"§ 41c. Joint Tenants.) Where there is no sufficient evidence that two joint tenants have died otherwise than simultaneously the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants."
The trial court's task was to determine whether or not the respondent-appellee had met her burden of proving there was sufficient evidence that Mrs. Lowrance had survived Mr. Lowrance. The court entered judgment for declaratory relief that she had. We reverse that judgment.
1 The burden of proof rested upon the respondent in this proceeding because it was she who alleged the survivorship of her decedent. The degree of proof required of her was a preponderance of evidence. Prudential Insurance Co. of America v. Spain, 339 Ill. App. 476, 90 N.E.2d 256.
The evidence of survivorship offered by the estate of Mary Ellen Lowrance consisted solely of testimony by a police officer who was sent to the Lowrance home to investigate the deaths of the couple. His testimony consisted of observations he made of the couple's bodies at their home at about 8 p.m. the day of their deaths and statements made to him some six hours later at the police station by the couple's daughter, Paula Lowrance, regarding the shooting of her parents. When questioned during direct examination about his observations of the couple, the officer testified that upon entering their bedroom, he saw them lying on the bed, Mr. Lowrance slightly on his left side and Mrs. Lowrance on her back. Their eyes were closed. The only differences observed about the two bodies by the witness were that Mrs. Lowrance had blood on her face and the front of her body in contrast to Mr. Lowrance who showed no bleeding and that "a gurgling sound or escape of air" came from Mrs. Lowrance's body three times. On cross-examination the officer testified that while in the presence of the Lowrance bodies, he never saw either body move or breathe. He stated that he did not take the pulse of either, that the muscles of both seemed relaxed and that he noticed nothing unusual about the skin color of either body. When cross-examined about the passage of air he heard come from Mrs. Lowrance's body, the officer testified as follows:
"Q: Now then you testified that you heard what sounded like the passage of air coming out from the body of Mrs. Lowrance?
Q: But that wasn't accompanied by any motion at all?
Q: Did that sound like a gurgling sound, would you describe it that way?
A: A gurgle sound like a passage of air, like a body ...