APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM V. HOPF, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 23, 1980.
Petitioner, Eva Kendon, as executrix of the estate of Gertrude Trampenau, deceased, brought a citation proceeding (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 16-1) in the circuit court of Du Page County to recover the sum of $39,987.40 alleged to have been fraudulently converted from decedent's estate by the respondent, Klaus-Peter Szillies. The trial court entered judgment for petitioner, but declined to award interest. Respondent appeals, contending that (1) the trial court erroneously placed the burden of proof upon him; (2) that the judgment is against the manifest weight of the evidence; and (3) that numerous instances of misconduct on the part of petitioner's counsel prejudiced the court against respondent, requiring reversal. Petitioner cross-appeals from that portion of the judgment which refused to allow interest and also seeks costs and attorney fees pursuant to a petition under section 41 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 41).
The evidence discloses that respondent came to this country from Germany in 1965 at the age of 21. He lived with his uncle and his uncle's wife, Gertrude Trampenau, the deceased, for about one year before going out on his own. He visited his aunt and uncle often, taking them shopping and working around their house. He continued to visit Gertrude two or three times each week after his uncle's death in 1968, and would take her places and do odd jobs for her, always without compensation.
In 1973 Gertrude, who was then about 78, decided to sell her house and move in with her grandnephew, Douglas Kendon, one of petitioner's sons. At Gertrude's request, respondent conducted the negotiations for the sale of her home and represented her at the closing on March 15, 1974. The proceeds of the sale, about $31,000, were deposited in Gertrude's checking account at the Lake View Bank.
Sometime in March 1974 Gertrude, respondent, and his friend, Ellen Hanock (now Ellen Hayes), discussed what she should do with her savings and the money she expected from the sale of her house. Gertrude told them about the ravages of the inflation in Germany during the 1920's and that she wished to invest in gold in order to protect her money from the burgeoning inflation in this country. Respondent informed her that a United States citizen could not own gold, but could own gold stocks and explained them to Gertrude. Ellen Hayes testified that Gertrude seemed to understand everything that was said to her.
Respondent testified that Gertrude requested him to open a joint tenancy account with the brokerage house of Cowen & Company in the names of herself, respondent, and petitioner and, accordingly, on April 2, 1974, respondent directed Cowen & Company to purchase 1219 shares of International Investors, Inc., a gold stock, for $29,940.40. On April 8, 1974, Gertrude came to respondent's apartment and gave him a blank check on which he filled in the date, the amount and the name of the payee, Cowen & Company, and decedent signed it. On April 9, 1974, a second account was opened at Cowen & Company, this time in joint tenancy between only respondent and Gertrude. As with the other purchase, respondent selected the stocks and, at the request of the decedent, directed the brokerage house to purchase additional gold stocks, 100 shares of President Steyn and 100 shares of Vaal Reefs at a cost of $10,000. This stock was paid for by a check which, he testified, had been signed in blank and mailed to him by decedent; respondent filled in the amount and the name of the payee, Cowen & Company.
According to respondent, only Gertrude and he were present when she instructed him to purchase the stocks and to arrange for the joint tenancy accounts. As to the April 2 purchase, respondent testified that Gertrude made a gift to him of his interest in order to compensate him for the interest petitioner had as a joint tenant in a savings account with decedent. Respondent also testified that decedent directed him to have the stock certificates held by the broker and to have all communications with respect to the stock sent to respondent's apartment. No joint tenancy agreement was ever signed by the parties and Gertrude died on April 15, 1974. Her will designated petitioner, Eva Kendon, as executrix and left the bulk of her estate to her; respondent received nothing under the will.
On the afternoon of April 15, 1974, Douglas Kendon called respondent to inform him of Gertrude's death, and he testified that respondent asked him if Gertrude had mailed a check. Respondent denies he said that but asserts that he told Kendon that he had received a check that morning and had mailed it to the broker before he learned of Gertrude's death.
Respondent's testimony was inconsistent with that of Thomas Lipman, the broker who handled the disputed accounts at Cowen & Company. Lipman testified that he phoned respondent on April 17, 1974, to inquire about payment for the stock purchased on April 9, 1974, and that respondent told him he was waiting for a confirmation statement. Respondent did not inform Lipman of Gertrude's death nor did respondent tell him that a check had been mailed on April 15, 1974. Roger K. Figstad, the manager of Cowen & Company, testified that his office did not receive the $10,000 check until April 22 or 23, 1974.
For seven months after Gertrude's death respondent maintained that the stock belonged to her estate. On April 21, 1974, he told Douglas Kendon that he had been handling her business affairs and that he had purchased gold stocks for her which now belonged to the estate. Respondent made similar statements to others at the funeral. During the third week of May 1974, Douglas Kendon inquired of respondent why his name was on the stock and was informed that he had acted as Gertrude's agent and that the presence of his name on the stock was meaningless. In October 1974, respondent told petitioner he was ready to turn over to her all of the stocks. At a hearing of the matter on November 22, 1974, respondent informed the court he had been ready to turn over the stock from the beginning because Gertrude would not have wanted the family linen to be aired in public. Yet, on June 10, 1975, respondent filed pleadings where, for the first time, he claimed an interest in the gold stocks as a surviving joint tenant.
After a bench trial, the trial court found that a fiduciary or confidential relationship existed between decedent and respondent and that respondent had failed to discharge his burden to overcome the presumption of fraud arising from that relationship. Respondent was found liable to the estate for the $39,987.40 he had received from decedent and was ordered to cause the stock certificates to be returned to the estate together with any dividends which had accrued. The court further ordered that "Respondent, Klaus-Peter Szillies, be credited with the value of the accrued stocks and accrued dividends in addition to the value of the original securities on the date of the delivery by said Respondent to said Petitioner of the amount to be determined as set forth in the Judgment entered in the above-entitled cause of action."
Respondent initially contends that the trial court erroneously placed the burden upon him to establish the validity of the purported gift to him of an ...