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In Re Estate of Martino

OPINION FILED AUGUST 31, 1981.

IN RE ESTATE OF CECELIA MARTINO, DECEASED. — (MADELYN MARTINO, ADM'X OF THE ESTATE OF CECELIA MARTINO, PETITIONER-APPELLEE,

v.

JEROME LEVATINO ET AL., RESPONDENTS — (JAMES LEVATINO, RESPONDENT-APPELLANT).)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 28, 1981.

This citation proceeding (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 16-1) was brought by Madelyn Martino (petitioner), administrator with the will annexed of the estate of Cecelia Martino (deceased), to recover $10,000 in United States Series "E" savings bonds issued in the names of the deceased and James Levatino (respondent). The trial court found these bonds were the property of the estate of the decedent. Respondent appeals.

On June 4, 1971, the deceased, a woman in her seventies, came to the office shared by respondent, a real estate and insurance broker, and his brother Jerome Levatino, an attorney. There, she executed her last will and testament, wherein she bequeathed her entire estate to petitioner. Petitioner was the widow of Donald, son of the decedent, who had died on May 30, 1971. The will designated respondent to serve as executor. The will was witnessed by respondent and Jerome Levatino.

On June 7, 1971, the deceased purchased $7000 in United States Series "E" savings bonds in her own name and also $10,000 in these bonds bearing her name and that of respondent as co-owners.

Cecelia Martino died on March 25, 1980. At the hearing on proof of the will, the trial court found respondent unqualified to act as executor of the estate by virtue of having been a witness to the will. The will was admitted to probate and petitioner was appointed administrator with the will annexed.

At the hearing on the citation, Jerome Levatino testified pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). He testified the deceased had been a client of his and a personal friend of his father. He had drafted the will at request of the deceased. He knew nothing of the savings bonds until after the death of the deceased. Jerome Levatino also stated he generally did not witness wills he had drafted, but the deceased insisted he do so.

Respondent was called by petitioner pursuant to section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60). He testified he never participated in any business transactions with the deceased and never represented her in any capacity. The deceased had been a neighbor as well as a client of his father. He had no knowledge of the savings bonds until after the death of the deceased. The bonds were never in his possession. The deceased never owed him money and he had no other claim against her estate.

Petitioner testified she aided the deceased during the years following the death of Donald, petitioner's husband. Petitioner drove the deceased to the Levatino offices on June 4, 1971, at the request of the deceased. Petitioner was present in the office while the will was being prepared.

Petitioner testified she found the savings bonds in the dresser drawer in the home of the deceased in late February or early March 1980. On cross-examination, petitioner stated the bonds were discovered while the deceased was still alive. Petitioner could not inquire about the bonds because the deceased was then unable to communicate. She had simultaneously discovered "E" bonds for $7000 in the name of the deceased as sole owner.

Respondent called petitioner as a witness pursuant to section 60 (Ill. Rev. Stat. 1979, ch. 110, par. 60). She testified immediately after the death of Donald Martino on May 30, 1971, the deceased closed out the bank accounts and safety deposit boxes held in co-ownership with him and reopened them in co-ownership with petitioner. The will of June 4, 1971, was executed that same week. The bonds in question were also purchased that week at the same bank where the deceased kept her accounts and safety deposit boxes. This bank was within walking distance of the deceased's home. In June 1971, the deceased was able to walk to the bank and ride a bus without assistance.

Petitioner testified she was present in the Levatino office during the execution of the will, but did not overhear the transaction. The deceased always told petitioner that petitioner would inherit everything.

Respondent testified he never had any discussions with the deceased concerning any bonds or securities. He had no personal knowledge of the financial affairs of the deceased. The deceased had never contacted him for advice concerning investment opportunities.

Jerome Levatino testified he had known the deceased since 1950. He could not recall the exact number of legal matters he handled for the deceased other than two real estate transactions and the divorce of her son. The deceased had come to their office to seek advice ...


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