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In Re Marriage of Severns

OPINION FILED FEBRUARY 18, 1981.

IN RE MARRIAGE OF ALICE SEVERNS, PETITIONER-APPELLEE, AND HOWARD SEVERNS, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Menard County; the Hon. LYLE E. LIPE, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 12, 1981.

This appeal presents, so far as we have been able to ascertain, a question of first impression. Counsel have cited to us no Illinois authorities on the matter, and our independent research among the jurisdictions which have adopted the Uniform Marriage and Dissolution of Marriage Act has likewise produced no precedents for the precise situation here. The question is: Can one spouse make a valid gift of a joint tenancy interest in real estate acquired subsequent to the marriage to the other spouse so that the latter may claim the entire property as non-marital under the provisions of section 503(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1)).

This was a second marriage for each of the parties. A prenuptial agreement was executed prior to the marriage which occurred in 1969. Shortly thereafter they purchased a tract of 19.2 acres which is here in dispute. The title was taken in joint tenancy, and a mortgage in the amount of $26,000 was placed on the premises. Both parties signed the mortgage deed and note. There was some scanty evidence that during the marriage Mr. Severns applied some funds received as gifts from his parents toward the tract, but he did not reveal any amounts.

Apparently both parties owned property prior to the marriage. Mrs. Severns testified that Mr. Severns retained all of his, but that some of hers was sold in order to meet marital expenses. During the marriage Mrs. Severns worked as a nurse, but Mr. Severns, apparently in poor health, was not employed but did some farming. Joint tax returns were filed by the parties and included the income from the 19.2 acres in question.

In May of 1976, Mrs. Severns went alone to the office of her attorney and executed a quit-claim deed to Mr. Severns of her interest in the 19.2 acres. She testified that she had been harassed by him on the matter, and that she executed the deed to please him and to save her marriage. She informed him of her action and stated that she hoped he was now satisfied. Mr. Severns denied using any coercion on her to force the conveyance.

Mrs. Severns filed a petition for dissolution and for disposition of property. No part of the proceeding is under appeal except the disposition of the 19.2 acres. The trial court ultimately held that it was marital property, and that any presumption of gift had been rebutted.

The pertinent portions of the Illinois Marriage and Dissolution of Marriage Act read in part:

"(a) For purposes of this Act, `marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property':

(1) property acquired by gift, bequest, devise or descent;

(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage * * * is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership * * *. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section." Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1), (b).

At the outset we must dispose of one argument made by the petitioner, Mrs. Severns. She claims that since "gift" is closely linked to "bequest, devise or descent" in the statute, the rule of ejusdem generis must apply; bequests, devises and inheritances must of necessity come from third parties, therefore, she argues, gifts must fall into the same category and must come from third parties. Inter-spousal gifts are forbidden. We do not agree.

If such a provision appeared in a will or a deed, it would be deemed void as a restraint or alienation. The supreme court has said:

"* * * Thus, as a general rule, restraints on alienation are void even though they are limited in time [citation], or as to mode [citation], or as to persons [citation], or whether the restraint is upon the alienation of a fee [citation], or a life estate [citation], or of a vested future interest [citation], or of personal property. [Citation.]" ...


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