APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND
E. TRAFELET, Judge, presiding.
MR. PRESIDING JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 23, 1980.
Angeline R. Kavanaugh, plaintiff-appellee, filed a claim against the estate of Joseph M. Dobrowolski (Alexander Dobrowolski, executor), defendant-appellant (hereinafter referred to as the Estate), for the proceeds from the sale by decedent during his lifetime of certain real estate. The claim alleged that, pursuant to an agreement between decedent and Kavanaugh, said proceeds were to be held by decedent in trust for her benefit. After a bench trial, judgment in the form of a fifth class claim *fn1 was entered in favor of plaintiff in the amount of $62,258. The Estate appeals from this judgment. The issues presented for review are (1) whether a written agreement between decedent and plaintiff was enforceable as a declaration of trust; (2) whether the trial court erred in determining that the agreement between decedent and plaintiff was signed by decedent and thereby erred in admitting it into evidence; (3) whether the trial court erred in admitting certain parol evidence; (4) whether the trial court erred in denying defendant's motion for a directed verdict; and (5) whether the trial court erred in entering judgment in favor of plaintiff.
For the reasons hereinafter set forth, we reverse the judgment of the circuit court.
Decedent and Kavanaugh were friends for more than 20 years prior to his death on February 19, 1976. During the six years prior to his demise, decedent was often hospitalized and in nursing homes, and plaintiff often visited him there. He also lived in plaintiff's home on different occasions, and she cared for him for several months at a time during this period. Plaintiff was compensated for some of these services, and she does not contend that they constitute consideration for any agreement between the parties. She does assert, however, that in recognition of their friendship, decedent established a trust for her benefit in the proceeds from the sale of certain real estate. Although the record discloses that a plethora of exhibits was offered during the trial, the resolution of this conflict focuses on only four relevant documents (which we set forth in chronological order):
(1) A trust agreement executed by decedent Joseph M. Dobrowolski, dated January 19, 1970, bearing trust No. 4564 with the Western National Bank of Cicero (hereinafter referred to as Trust No. 4564);
(2) An agreement bearing the date of 1970, purportedly signed by decedent, concerning the proceeds from any sale of the real estate held in Trust No. 4564;
(3) A letter from decedent to Kavanaugh dated November 6, 1970 (hereinafter referred to as the "Dear Angie" letter); and
(4) A formal amendment to Trust No. 4564 executed by decedent and accepted by the bank, dated February 25, 1971.
For purposes of clarity, the evidence adduced at trial will be summarized as it relates to the preparation, execution and content of these documents.
The decedent, Joseph M. Dobrowolski, was settlor of Trust No. 4564, established with the Western National Bank of Cicero on January 19, 1970. Joseph Boucek, an attorney and trust officer of the bank, testified that decedent established this land trust for the property commonly known as 2315-17 So. 50th Avenue, Cicero, Illinois. Decedent was well known to Boucek, and this trust was executed by decedent in his presence and also signed by Boucek as an officer of the bank. The trust provided that the beneficial interest was held by "Joseph M. Dobrowolski during his lifetime, with full power to dispose of the entire beneficial interest herein, and in case of his death, not having done so, then Angeline R. Kavanaugh." The trust further provided that the Western National Bank would deal with the real estate only on the written direction of Joseph M. Dobrowolski. Boucek testified as an expert witness that in his opinion this trust created no present interest in Angeline R. Kavanaugh; that any interest she might have would arise only upon the death of Joseph Dobrowolski, and that he retained the power to alter, amend, or revoke the trust without her consent. Mrs. Kavanaugh's attorney at this time was John Cook. He testified that he agreed that the trust, as written, was revocable because of decedent's power of direction, and he so informed Mrs. Kavanaugh sometime in 1970. Decedent eventually executed a letter of direction for deed dated December 28, 1972, to the trustee of Trust No. 4564, directing it to convey the real estate. The bank subsequently issued a deed to Peter and Mary Jestica, and Boucek testified that this action closed the trust with the bank.
In the interim between the establishment of Trust No. 4564 and the amendment to such trust on February 25, 1971, Cook prepared two other documents in an attempt to protect Kavanaugh in the event of a sale of the real estate in Trust No. 4564. One of these documents was captioned "Agreement" and provided that, inter alia, "in the event that Joseph M. Dobrowolski sells the real estate which is the subject matter of the said trust, he agrees to notify Angeline R. Kavanaugh of the fact of any such sale." Also, it stated that "in the event of such sale, he will hold the sale proceeds in trust retaining the income therefrom for his lifetime with the principal thereof to be the property of Angeline R. Kavanaugh after his death." The agreement further provided that it was the intention of the agreement and the provision of Trust No. 4564 "that the principal of the trust estate, howsoever constituted," should be held and invested with the ...