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In Re Estate of Duncan

OPINION FILED NOVEMBER 5, 1979.

IN RE ESTATE OF BRACK DUNCAN, DECEASED. — (ALICE DOWELL, EX'R OF THE ESTATE OF BRACK DUNCAN, PETITIONER-APPELLEE,

v.

EULA HARMON, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Whiteside County; the Hon. JOHN DONALD O'SHEA, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 11, 1979.

Respondent Eula Harmon appeals from a judgment of the Circuit Court of Whiteside County following a bench trial of a citation proceeding. The citation proceeding was commenced by petitioner, Alice Dowell, executor of the estate of Brack Duncan, pursuant to section 16-1 of the Probate Act (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 16-1). The petition sought to recover certain assets of the estate alleged to have been held by the respondent Eula Harmon. In its judgment, the Circuit Court of Whiteside County ordered respondent Harmon to pay the estate the proceeds of a savings account which decedent Duncan had placed in the names of respondent and petitioner, plus interest on the proceeds from the date that the petitioner-executor had demanded the proceeds to the date of the judgment. Respondent Harmon was also ordered to pay the estate an amount of money which the court determined was in decedent's billfold at the time of his death, after deducting bills which respondent Harmon had paid on behalf of decedent and after deducting the amount which respondent Harmon had already paid to the estate.

The record in the case indicated that following the death of his wife in August of 1973, decedent Duncan moved in with his daughter, Eula Harmon, the respondent. Decedent paid nothing for room and board, but contributed some money to vacation expenses when he accompanied respondent's family on at least one of their vacations.

On August 20, 1974, decedent Duncan set up two joint savings accounts at the Rock Falls Savings and Loan Association, each of said accounts being established with a deposit of $12,500. One account, which we will describe as the "Eula Harmon account," was set up in the name of Eula Harmon and Alice Dowell. Respondent Harmon kept the passbook to this account. Another account, which we will describe as the "Alice Dowell account," was set up in the name of Alice Dowell and Eula Harmon. Petitioner Dowell, also a daughter of decedent, kept the passbook to this account. On the day the accounts were opened, petitioner, respondent and the decedent drove to the Rock Falls Savings and Loan office together. Petitioner Dowell testified that during the drive, decedent told her and the respondent Harmon that the funds were to be divided equally between the five children of the decedent, at his death. Respondent Harmon, however, testified under a section 60 examination that decedent Duncan had told her and petitioner that the accounts were established for the survivor of her and petitioner-Dowell, a statement which respondent repeated on direct examination, when called as a witness.

Both of the decedent's said daughters testified that Duncan was involved in the creation of the accounts and they both accompanied decedent Duncan each time he made a withdrawal from each of the respective accounts, that is, respondent Harmon accompanied the decedent Duncan at the time he made withdrawals or deposits in the Eula Harmon account, and the petitioner Dowell accompanied decedent at the time of any transactions in the Alice Dowell account. Both of the daughters said that decedent Duncan controlled the accounts by telling them when to deposit and withdraw funds.

On February 8, 1977, prior to Duncan's death, respondent Harmon withdrew $15,855.75 from the "Eula Harmon account", which was the entire balance of funds in the account at that time. As we have noted, decedent Duncan had accompanied Harmon to the savings and loan when she made the withdrawal, and respondent Harmon testified that decedent wanted her to have this money. The statement was stricken as being in violation of the Dead Man's Act (Ill. Rev. Stat. 1977, ch. 51, par. 2) and also that it was hearsay. Respondent's daughter, who had accompanied the respondent and the decedent to the savings and loan office on February 8, stated that decedent told respondent Harmon that she could have the money. Petitioner's objection to this statement was also sustained on hearsay grounds.

Petitioner testified that on the night of decedent's death, he told petitioner Dowell that he had $4,400 in his billfold, which was in the possession of respondent Harmon. Later, in the direct examination, petitioner's attorney attempted to question her about a conversation she had with decedent a month before his death. That testimony was objected to by respondent Harmon and the objection was sustained and the testimony was not admitted. Respondent's attorney then stated that he wanted to make the same objection with regard to the conversation about the $4,400 in the billfold but the court overruled the objection stating that it was made too late.

The record also discloses that decedent had a monthly income from pensions and social security payments of $605 and had expenses of $30 per month.

The trial court found that $4,200 was in decedent's billfold at the time of his death. The court concluded that these funds represented the proceeds of the various pensions decedent had received from February 1977 to October 1977. The court found that respondent Harmon had already paid the executor $932 of this money, which was stated by Harmon to be the entire amount which was in his wallet, and had also paid $254 on behalf of the decedent from this money. The court, accordingly, ordered respondent Harmon to pay the remaining balance of $3,014 to the estate on the conclusion by the court that the total amount of money was in fact $4,200. The court also ordered respondent Harmon to pay the estate the proceeds of the Eula Harmon account of $15,855.75 and, also, an additional 5% interest from the date the executor had demanded the money (on October 27, 1977), to the date of the judgment (on October 6, 1978).

• 1-3 Our first concern is to determine whether the trial court properly found that there was clear and convincing evidence that the decedent Duncan did not intend to make a gift when he established the savings accounts in joint tenancy in the names of the two daughters. As stated in Cuellar v. Cope (1974), 17 Ill. App.3d 743, 745, 308 N.E.2d 212, 215:

"To have a valid gift there must be both donative intent and delivery of the subject matter."

In the instant case, the establishment of the joint accounts in the daughters' names, and the giving of the passbooks to the daughters, could have constituted delivery. The question remaining for the court to resolve is whether there was a donative intent under the facts in this case. The supreme court of this State in Frey v. Wubbena (1962), 26 Ill.2d 62, 70-71, 185 N.E.2d 850, stated that:

"There is a presumption that the taking or placing of title by a father in a child is a gift or advancement, and the burden is upon one questioning the gift to overcome ...


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