APPEAL from the Circuit Court of Wayne County; the Hon. HARRY
L. ZEIGLER, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
In both her individual and representative capacities petitioner appeals from orders of the trial court which made disposition of assets of the conservator and decedent estates of Frances Brach. Of the three issues raised on appeal in this case two relate to involuntary severance of joint tenancies in personal property.
Frances Brach acquired at various times late in her life several savings bonds and certificates of deposit which were issued in joint tenancy with several different joint tenants. Each savings bond or certificate of deposit was issued in the names of herself and only one other joint tenant. On October 15, 1976, she was adjudged an incompetent and a conservator was appointed. After one year with a conservator Ms. Brach was in very poor health, apparently suffering from a terminal illness and expected to live but a short time. Her other assets being depleted, the conservator petitioned the court for permission to liquidate some of the jointly held bonds and certificates of deposit to meet the expenses of her care. Following notice which was sent to all joint tenants a hearing was held and an order of court was entered on September 6, 1977. It apparently reflected the wishes of the parties as they were expressed in the hearing. The order provided that the conservator would liquidate all the jointly held bonds and certificates, place the proceeds thereof in an interest-bearing account and make necessary withdrawals for expenses of the ward. Upon the death of the ward the funds remaining at the time were to be applied first to the payment of all expenses, including those of last illness and the funeral. Thereafter the balance was to be distributed ratably to each of the persons whose names appeared on the several jointly held bonds and certificates. Each person whose name so appeared was to receive as his share of the remaining funds the proportion his interest bore to the total sum at the time the order was entered.
The bonds and certificates were liquidated in due course and expenses were paid from the account in accordance with the order. About six months after the order was entered Frances Brach died. There remained of the liquidated bonds and certificates approximately $42,000.
The conservator filed his final report on April 7, 1978, and was ordered, pursuant to his request, to turn over to the personal representative of the estate of Frances Brach, deceased, all assets including any money held by him. To this order some of the surviving joint tenants objected. As a result another order was filed on September 20, 1978, reinstating the order of September 6, 1977, and at the same time setting aside the order of April 7, 1978.
On October 10, 1978, without having petitioned for leave to intervene, the decedent's stepdaughter, the petitioner herein, Harriet Odum, filed an "Objection to Order of Court," addressed to the order of September 2C, 1978. She claimed that the order of September 6, 1977, requiring distribution to the surviving joint tenants was of no force and effect because the joint tenancies had been severed as a result of either the adjudication of incompetence and appointment of a conservator on October 15, 1976, or the order itself of September 6, 1977, providing for liquidation of the joint accounts. The court entertained Harriet Odum's objection and overruled it on November 3, 1978, ordering the conservator to comply with the prior order of September 6, 1977.
Frances Brach's will had been filed for probate on April 7, 1978. On November 20, 1978, letters of office were issued to Harriet Odum. On December 1, 1978, Harriet Odum petitioned for and was granted leave to intervene individually as sole beneficiary and as executor of the last will of Frances Brach. On that same day she filed notice of appeal from the orders of September 6, 1977, and November 3, 1978.
In her brief to this court she argues for the first time that the savings bonds and certificates of deposit were not properly shown at the September 1977 hearing to have been held in joint tenancy and that, in fact, they were not so held for failure to comply with the requirements of the joint rights and obligations act (Ill. Rev. Stat. 1977, ch. 76, par. 2).
1 The rule that an issue can not be raised for the first time on appeal needs no citation of authority. Appellant argues that she should be excused from the application of the rule because to do otherwise would be "harsh and unjust." We disagree. She claims that because she was not appointed executor until December 1, 1978, she could not have protected the estate by raising the issue in the trial court when the hearing was had. She argues further that it would be "unfair and illogical" to apply the rule because she was not "allowed" to intervene until December 1, 1978, the day her notice of appeal was filed. It is more accurate to say, however, that appellant for whatever reason chose not to petition to intervene until the day notice of appeal was filed. Her attorney was present on September 20, 1978, moving orally to stay the execution of the order of that day until October 10, 1978, "for time to file objections thereto." Thus, she could have petitioned for leave to intervene on or before September 20, 1978. She objected to the September order in her individual capacity on the October date without having intervened. There is no reason why she could not have included in her written objection of October 10, 1978, the additional contention that the statutory requirements for forming a joint tenancy had not been met. Doubtless the court would have considered that contention as it did the others made by her. We believe that her October objection was tantamount to intervention in her individual capacity. Since she was both executor and sole beneficiary under the will and objected in her individual capacity, it makes no difference in the operation of the rule that she could not have intervened as executor until the day notice of appeal was filed. She will not be heard to say that she should be able to raise an issue for the first time on appeal as executor which she failed to raise previously in her individual capacity as sole beneficiary under the will.
Finally the appellant claims that the rule ought not to be applied because "[i]t was not until the Record on Appeal was prepared by the court reporter and Circuit Clerk that petitioner became aware that no evidence had been offered concerning how the U.S. Savings Bond and Certificates of Deposit were held." The order to which she objected in October 1978 issued from a hearing held over one year before. Appellant could have availed herself of the transcript of the proceeding when she made her objection.
For these reasons we decline to permit appellant to raise for the first time on appeal the issue of whether the funds were in fact held in joint tenancies.
Since we deem the disputed personal property to have been held in joint tenancy there remain the questions of whether a severance of the joint tenancy was effected either by the order to liquidate the bonds and certificates or by the adjudication of incompetency and the appointment of a conservator. In general the cases appellant cites to these issues have been overruled, or are not on point, or both. Appellee cites none.
2, 3 No jurisdiction, it seems, including our own, has ever addressed the issue of whether a court order for liquidation severs a joint tenancy. In Illinois a joint tenancy is severed by the destruction of any one of the necessary unities of time, title, interest and possession. (Tindall v. Yeats (1946), 392 Ill. 502, 508, 64 N.E.2d 903, 906.) It is hornbook law that severance may occur voluntarily by transfer by one of the joint tenants (cf. Szymczak v. Szymczak (1923), 306 Ill. 541, 138 N.E. 218), or involuntarily by execution upon a judgment against one of the joint tenants (cf. Spikings v. Ellis (1937), 290 Ill. App. 585, 8 N.E.2d 962). Also, joint tenants may mutually agree to hold as tenants in common and in so doing sever the joint tenancy. (Duncan v. Suhy (1941), 378 Ill. 104, 109, 37 N.E.2d 826, 829.) The agreement to terminate need not be express. It may be implied from conduct of the parties inconsistent with holding in joint tenancy where both, or all, joint tenants are owners and, of course, possessors of the whole. Duncan v. Suhy.
In this case no one would contend that the parties made any transfer of any of the jointly held instruments, though appellant might have urged that when the need to liquidate the bonds and certificates arose the parties in effect petitioned the court for partition. The facts, however, are to the contrary. When they sought the aid of the court, they did so to preserve their interests as joint tenants, not to destroy them. No party ever asked that the proceeds of any bond or certificate be divided into two equal parts as would have been done in partition. The conservator as well as the other parties wished and that intent is manifest in the record to preserve the joint tenancy with the right of survivorship. The conservator's petition which initiated the action noted the need for funds for the care of his ward and prayed for "the advise and guidance of this court in this matter and for an Order to be entered by this court to convert additional investments as are necessary, to cash, to be expended for the care of the said Frances Brach." Following notice and hearing the court found, in its September 6, 1977, order, "that it is necessary to convert said [jointly held ...