APPEAL from the Circuit Court of La Salle County; the Hon.
THOMAS R. CLYDESDALE, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
This is an appeal and a cross-appeal from decisions of the Circuit Court of La Salle County in the estate proceedings of Della May Denler, deceased. In the estate proceedings, Warren Denler filed a citation to recover assets, seeking recovery from his sister and her family of various properties which he claimed rightfully belonged to his mother's estate. (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 16-1.) After a full hearing on the petition, the circuit court ordered recovery of three certificates of deposit held by Eileen Andracke (Mrs. Denler's daughter and Warren Denler's sister). The court also ordered the recovery of certain real estate claimed by Eileen Andracke. In addition, the court ordered that Warren Denler be reimbursed out of estate assets for moneys expended by him in the care of his mother before her death. From these rulings, adverse to her, Eileen Andracke appeals.
The court also found that there should be no recovery by the estate of certain moneys, insurance proceeds and personal property held by Eileen Andracke but claimed as part of the estate by Warren Denler. In addition to finding that such property rightfully belonged to Eileen Andracke, the court ordered that she was entitled to $9,500 from proceeds of the sale of the real estate as repayment for a loan of that amount to Mrs. Denler. From these rulings, adverse to him, Warren Denler has filed a cross-appeal.
The record discloses that Mrs. Della Denler and her husband had two children, Warren and Eileen. In 1969, Mrs. Denler's husband died and left the bulk of his estate to his widow. Mrs. Denler was also the surviving joint tenant of the family home and of five certificates of deposit. At that time, Mrs. Denler was in fair health, following recovery from a 1965 stroke. After her husband's death and while still in good health, she told her daughter, Eileen Andracke, that it would be up to her, Eileen, to take care of her mother in the event that anything should happen to Mrs. Denler. Between October 9, 1969, and November 13, 1970, Mrs. Denler and Eileen went to the Colonial Bank and Trust Company in Peru, Illinois, and had the listed ownership of the certificates of deposit changed. One $500 certificate of deposit, two $5,000 certificates of deposit, and one $10,000 certificate of deposit were all placed in joint tenancy between Mrs. Denler and Eileen Andracke. Another $10,000 certificate was made a payable-on-death certificate, payable to Eileen Andracke. According to uncontradicted testimony, on each occasion wherein a change in ownership was made, bank personnel explained to Mrs. Denler the nature of joint tenancy, including the rights of survivorship in the surviving joint tenant. The evidence indicated that Mrs. Denler and Eileen Andracke signed signature cards indicating the certificates were to be held in joint tenancy after such explanations were given by bank personnel. Eileen and her mother also opened a joint checking account at that time, for the convenience of Mrs. Denler. Up until a 1975 stroke, Mrs. Denler wrote her checks herself from the account. Mrs. Denler lived alone and took care of herself at the time the certificates of deposit were changed into joint tenancy and up until 1975. Mrs. Denler maintained exclusive control and possession of the certificates, and kept them in a strong box in her home. It is undisputed that the moneys used for the certificates were those of Mrs. Denler.
In December 1973, Mrs. Denler and Eileen Andracke went to the law offices of attorney Francis Duncan, and there two deeds concerning the family home, solely owned by Mrs. Denler, were drawn up and executed. The first deed conveyed to Duncan's secretary the real estate, while the second deed from the secretary reconveyed the property to Mrs. Denler and Eileen in joint tenancy. Mrs. Denler continued to reside in the home and both her children visited her there, although Eileen was the more frequent visitor and helped her mother with routine shopping, paying bills and other such everyday chores. On August 23, 1975, Della May Denler suffered a disabling stroke. After hospitalization, she was placed in a nursing home, suffering from partial paralysis which severely limited her movement and her speech, although from the evidence it appears there was no impairment of her intellectual abilities.
In the early spring of 1976, Eileen Andracke wrote to her brother Warren, who was then in California, informing him that she intended to sell the house and to remove their mother from Turtlecreek Nursing Home, where she had been staying, and place her in another home. The change in residence was accomplished, but when Warren Denler returned home he had his mother returned to Turtlecreek since, according to his testimony, the environment at the other home was unacceptable to him and to his mother. According to his testimony, it was also about this time that he and his sister agreed that their mother's affairs should be put in a joint account, between the two of them, and that thenceforth both would sign the checks necessary for their mother's care. For this purpose, Eileen Andracke transferred one of the $5,000 certificates, held in joint tenancy between her and her mother, into a joint account between her and her brother. A portion of that money was used to pay nursing home expenses and the remainder was put into the joint account of the sister and brother. None of the other certificates of deposit were ever transferred into the joint account, and Eileen Andracke later claimed that they were hers and she wished to keep them as they were.
Further testimony at trial indicated that Mrs. Denler, during 1975, had made a new will, in which she left all of her estate to her daughter, Eileen Andracke, and if Eileen should die, to her son-in-law. Warren Denler was excluded from any inheritance. According to his testimony, his sister told him that the will had been drawn up that way because he and his second wife were having troubles and Eileen had informed their mother that if anything should happen to Warren, the estate would go to his wife. He testified that Eileen at first agreed to have the will revoked when informed by him that the marriage was now going fine, but that she later changed her mind and told him that she would not have the will "voided." It was at that time that Warren and Eileen stopped talking to each other.
It was also about this time that Mrs. Denler executed another will, the one which was before the court in this estate matter. That will, dated April 9, 1976, revoked all prior wills and codicils and devised all her estate, after payment of just debts and expenses, to her son, Warren, and her daughter, Eileen, in equal and proportionate shares. It also appointed them as co-executors. Clear and uncontradicted testimony in the record, from the attorney who prepared the will and from a nurse who witnessed its execution, indicated that Mrs. Denler was of sound mind at that time and that she wished her estate to be divided equally between her children. She also executed a power of attorney on April 9, 1976, appointing her son, Warren, as her attorney and directing him to create joint tenancy title between himself and Eileen in all savings accounts, certificates of deposit, and checking accounts then owned by her.
The power of attorney also authorized Warren to execute a quitclaim deed of the real estate for the purpose of creating a joint tenancy ownership of it between himself and Eileen. Along with the specific directions and powers, the document also directed that it be construed and interpreted as a general power of attorney. The power of attorney was signed by Mrs. Denler, witnessed by the attorney who drew it up, and duly notarized. Subsequently, Warren Denler, pursuant to the direction and power contained within the power of attorney, quitclaimed his mother's interest in the real estate to himself. However, he took no action, as attorney for his mother, with respect to the certificates of deposit, inasmuch as Eileen refused to turn the certificates over to him and the bank and also refused to execute any document creating joint tenancy between Eileen and her brother. The certificates had been taken by Eileen from her mother's home after her mother suffered the August 1975 stroke.
Another document pertinent to the issues on appeal is a trust agreement, executed by Mrs. Denler, as settlor, and by Eileen Andracke, as trustee, on December 6, 1976. That agreement was prepared by an attorney for Eileen Andracke, although Mrs. Andracke testified that the idea of the trust agreement was her attorney's idea, not hers. Mrs. Andracke's son explained the provisions of the three-page trust agreement to Mrs. Denler prior to the latter's execution of the document. The trust agreement purported to transfer the three remaining joint tenancy certificates of deposit to Eileen in trust, with a provision that the trustee, Eileen, use so much of the income and principal as necessary for Mrs. Denler's support and care. In addition, the trust agreement recited that the real estate was currently held by Eileen and Warren, as joint tenants, and the agreement directed that the real estate be sold and the proceeds, minus $9,500 for a loan repayment to Eileen, be put in trust for Mrs. Denler's benefit. Mrs. Denler also executed another power of attorney, this time to Eileen, empowering her to bring the trust property into the trust. The trust agreement itself directed that upon Mrs. Denler's death, the trustee was to pay expenses and debts and then was to distribute the remaining principal and income to her children, equally.
Della May Denler died on September 20, 1977, and a petition for probate of her will of April 9, 1976, was filed on November 1, 1977. In the estate proceedings, Warren Denler filed a citation and petition to recover assets for the estate. (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 16-1.) Among the property sought to be recovered for the estate were the three remaining certificates of deposit, naming Mrs. Denler and Eileen as joint tenants, the payable-on-death certificate, the real estate, and various items of personal property, including furniture and personal items, which had allegedly been given to Eileen Andracke and other members of her family by Mrs. Denler. Warren Denler also sought recovery of the proceeds of certain life insurance policies on Mrs. Denler's life which had been paid to Eileen as beneficiary under the policies. The court conducted a hearing on the recovery proceedings and received memoranda from counsel. The court then entered its order on November 1, 1978.
The court made specific findings concerning all of the property at issue in the recovery proceeding. With regard to the three certificates of deposit in joint tenancy between Mrs. Denler and Eileen Andracke, the court found that the presumption of donative intent implicit in the creation of those certificates had been overcome by clear and convincing evidence; that the requisite donative intent was lacking. The court found that those certificates were to be held for the care of Mrs. Denler, thus concluding that the joint tenancy arrangement had been created solely for her convenience and no change of ownership was intended.
With regard to the real estate, the court found that it too must be considered an asset of the estate since Mrs. Denler did not intend to make a gift of the property to her daughter when the joint tenancy was created. The court held that the $10,000 "Payable on Death to Eileen Andracke" certificate was not an asset of the estate but belonged to Eileen Andracke. The court also held that Eileen Andracke was entitled to $9,500 from the sale of the real estate, as repayment of the loan mentioned in the trust agreement of 1976. With regard to the life insurance proceeds, the court found nothing to negate a gift of the proceeds to Eileen and it held such proceeds to be the property of Eileen Andracke.
Warren Denler had also contended that certain furniture and other personal effects of Mrs. Denler had been taken from her home in such manner that they ought be returned to the estate. The court concluded that the contested furniture and other personal property had been validly given to Eileen Andracke and members of her family by Mrs. Denler. A final holding of the circuit court in this manner was that Warren Denler should be reimbursed from estate assets for the money he advanced for his mother's care while at ...