APPEAL from the Circuit Court of Cook County; the Hon. JOHN F.
HECHINGER, Judge, presiding.
MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
The plaintiff, Casmir Lesnik, brought this action in chancery challenging an inter vivos transfer of property into a land trust by his deceased wife, Anastasia. The trial court entered summary judgment in favor of the defendants and the plaintiff appealed.
Count I of plaintiff's amended complaint set forth the following allegations. The plaintiff and Anastasia were married in 1971 and lived together as husband and wife until her death in 1976. In 1969, Anastasia created a land trust with the Union National Bank of Chicago as trustee. Pursuant to the terms of the agreement, Anastasia owned the sole beneficial interest in the trust and possessed the power of direction. The agreement also provided that Anastasia's children by a prior marriage, Virginia Zbos and Dennis Sopata, would acquire the beneficial interest in the trust upon Anastasia's death.
In 1975 Anastasia purchased a parcel of real estate in Homewood, Illinois, which was conveyed into the existing land trust. The property was the marital home of the parties until Anastasia's death. The plaintiff alleged that the purpose of the conveyance into the trust was to defraud him of his statutory marital rights as surviving spouse.
In count II the plaintiff alleged that several weeks prior to her death, Anastasia promised to amend the trust agreement in order to name the plaintiff as a joint tenant with the right of survivorship to the beneficial interest. The plaintiff sought specific performance of this oral promise.
Defendants Zbos and Sopata moved the court for summary judgment in their favor. Zbos' affidavit, which accompanied the motion, stated that the original subject matter of the trust was three parcels of property. In 1975 Anastasia sold the beneficial interest in one parcel, her residence in Chicago. With the proceeds of this sale and a $15,000 mortgage, Anastasia purchased the Homewood property. *fn1 The plaintiff did not contribute toward the purchase price, mortgage payments or real estate taxes on the property, and he did not obligate himself on the mortgage note. Zbos further stated that she made all mortgage payments on behalf of her mother. Copies of her cancelled checks payable to the mortgagee were attached to the affidavit.
The defendants also filed with the court the transcript of the discovery deposition of the plaintiff. In his deposition the plaintiff admitted that the decision to sell the Chicago residence and purchase the Homewood property was made by Anastasia and her two children and that he was not consulted concerning the sale. He further admitted that he did not contribute any funds toward the purchase of the property.
The defendants asserted in their motion for summary judgment that because the trust was created prior to the parties' marriage, it could not have been established to defraud the plaintiff of his marital rights as a surviving spouse. They argued that the change of the trust res from the Chicago property to the Homewood property did not create any marital rights in the plaintiff.
The plaintiff responded to the motion by arguing that the factual issue of Anastasia's intent to defraud him of his marital rights precluded the granting of summary judgment. However, the plaintiff filed no counteraffidavit. The plaintiff also filed a motion for judgment on the pleadings.
On June 19, 1978, the trial court entered its judgment finding that the trust was created prior to the marriage of the parties, that the terms of the trust had not been altered since the time of its creation and that there was no evidence of fraud in the replacement of the trust res. The court entered the defendants' motion for summary judgment and denied the plaintiff's motion for judgment on the pleadings.
1 The first issue presented for review is whether the trial court erred in granting defendants' motion for summary judgment as to count I of the amended complaint. Summary judgment is properly granted when the pleadings, depositions and admissions on file, together with any affidavits, establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1977, ch. 110, par. 57(3); Barnes v. Washington (1973), 56 Ill.2d 22, 305 N.E.2d 535; Warchol v. City of Chicago (1979), 75 Ill. App.3d 289, 393 N.E.2d 725.) The right of the movant to summary judgment must be free from doubt, and any evidence in support of the motion must be strictly construed against the moving party. (Olsen v. Karwoski (1979), 68 Ill. App.3d 1031, 386 N.E.2d 444.) A court should grant summary judgment with caution so as not to preempt a litigant from presenting the factual basis of his case to the trier of fact. Olsen v. Karwoski.
Count I alleged that Anastasia conveyed the Homewood property into the land trust in order to deprive the plaintiff of his statutory marital rights as a surviving spouse.
2 In Illinois it has always been the law that an owner of property has the absolute right to dispose of his property during his lifetime in any manner he desires. Moreover, he may do so despite the fact that the transfer is for the express purpose of minimizing or defeating the statutory marital interests of the surviving spouse. (Johnson v. LaGrange State Bank (1978), 73 Ill.2d 342, 383 N.E.2d 185; Toman v. Svoboda (1976), 39 Ill. App.3d 394, 349 N.E.2d 668.) The only exception to this rule occurs when the transaction is "colorable" or "illusory" and is tantamount to a fraud. Johnson v. LaGrange State Bank; Holmes v. Mims (1953), 1 Ill.2d 274, 115 N.E.2d 790.
3 In Johnson v. LaGrange State Bank the supreme court clarified what is meant by fraud in cases involving the marital rights of the surviving spouse. The court held that an inter vivos transfer of property is valid as against the marital rights of the surviving spouse unless the transaction is tantamount to a fraud as manifested by the absence ...