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In Re Estate of Joutsen

OPINION FILED SEPTEMBER 4, 1981.

IN RE ESTATE OF JENNY JOUTSEN. — (J. STERLING MORTIMER, GUARDIAN OF THE ESTATE OF JENNY JOUTSEN, PETITIONER-APPELLEE,

v.

LAWRENCE WOODFIELD ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD E. DOWDLE, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a bench trial, respondents, Lawrence Woodfield and Donna Bagnuolo (now married), were ordered to pay the sum of $90,027.26 to the guardian of the estate of Jenny Joutsen, petitioner-appellee. On appeal, they contend that (1) the court did not have the authority to order them to repay $90,027.26 to the estate; (2) the court's finding of Jenny Joutsen's incompetency is against the manifest weight of the evidence; and (3) the court's finding that respondents received $90,027.26 from Jenny Joutsen is against the manifest weight of the evidence. A separate appeal to be considered with this case involves a supplementary citation to discover and recover assets brought to recover alleged assets of the estate transferred to a third party. The court ruled that no prima facie case was established, and petitioner appeals. The pertinent facts follow.

On May 11, 1978, the trial court entered an order appointing J. Sterling Mortimer as guardian ad litem for Jenny. Following his report, the court adjudged Jenny an incompetent. The guardian filed a petition on October 18, 1979, for discovery and recovery (Ill. Rev. Stat. 1977, ch. 110 1/2, pars. 16-1, 16-2) against respondents alleging that on November 28, 1977, Jenny's estate included $74,000 in four savings accounts and four $5,000 United States savings bonds. He further alleged that respondents had obtained possession of these monies and other personal property and had converted or embezzled this property by compelling Jenny to sign papers which she did not and could not understand as a result of her impaired mental capacity. The petition requested the return of all personal property belonging to the estate and the voiding of any documents purporting to transfer funds from Jenny to respondents.

Jenny resided with her husband, Timo, at 6211 West Fullerton until his death on November 28, 1977. On December 3, 1977, Jenny executed a power of attorney to Bagnuolo, which was prepared and witnessed by Samuel Del Principe, an attorney. He indicated that at Bagnuolo's request, he visited Jenny at her home initially on December 1, 1977. Del Principe also prepared a State inheritance tax return, Federal estate tax return and a will on Jenny's behalf. The will, also executed on December 3, 1977, and witnessed by Woodfield, provided that Bagnuolo would inherit all of Jenny's property upon her death. Del Principe testified that before he executed the power of attorney he determined that Jenny was mentally competent. He also explained each paragraph to her before she signed it, and Jenny confirmed that she wanted Bagnuolo to act on her behalf.

Bank records indicated that on November 28, 1977, Jenny had approximately $75,728.74 in four bank accounts and $20,000 in United States savings bonds in $5,000 denominations. These bank funds were collected and deposited into two joint accounts at the Midwest Bank & Trust Company in the names of Jenny Joutsen and Donna Bagnuolo. Bagnuolo secured access to the Joutsen safety deposit box which contained the savings bonds on March 17, 1978. The bonds were redeemed and the proceeds were deposited into the joint checking account of Jenny and Bagnuolo at the Bank. Bagnuolo withdrew $72,302.83 from the joint account and loaned the money to Woodfield, who in turn loaned the money to Woodfield Industries. Other funds were then withdrawn from these joint accounts and placed in the joint accounts of Woodfield and Bagnuolo. The loan was executed three weeks after guardianship proceedings had been instituted.

Mortimer testified that when he visited Jenny in her home on May 28, 1978, he found Jenny to be totally disoriented even initially as to her own identity. She had little food in her house and still believed that her husband and son were alive. She was not aware of the petition to appoint a guardian. It was his opinion that Jenny manifested complete disorientation and had a complete inability to handle her affairs or her person. The only type of identification she could make was at least 20 years prior to the time he was talking to her.

Dr. Irving Blumenthal has been Jenny's physician since September 1966. Between 1966 and 1978 he saw Jenny 8 to 10 times a year. His initial visits with her showed that she was suffering from hardening of the arteries and from approximately 1971 on, he began to treat her basically for senility. Between 1971 and 1978, Jenny's illness grew progressively worse. On September 16, 1977, Dr. Blumenthal visited Jenny and found that she lacked the mental capacity to make decisions and, because of this, was easily influenced. The next time he saw Jenny was on June 5, 1978, in the hospital. At that time she still did not realize her husband was dead.

On cross-examination, Dr. Blumenthal admitted that he did not see Jenny between September 16, 1977, and June 5, 1978, and that prior to 1978, Jenny could understand things momentarily.

Margaret Tonkovic testified that she lived next door to Jenny, on West Fullerton. She indicated that the day following Timo's death, Jenny told her that Timo was not dead, but at work. Jenny also asked for her son, John, who has been dead for approximately six years. Tonkovic also stated that Bagnuolo had told her that Timo had been dead for about three days before Jenny informed her that a strange man was in her husband's bed. She next saw Jenny in late February or early March 1978. Jenny was locked out of her apartment, could not get in, and indicated that Timo was sleeping.

Woodfield testified that he had between 10 and 20 conversations with Timo and Jenny regarding financial matters, prior to Timo's death. He testified that Timo agreed to lend him between $75,000 and $100,000 for his business. After Timo's death, Jenny told him to discuss finances with Bagnuolo. Woodfield indicated that on several occasions he memorialized his conversations with Timo or Jenny concerning the loan and identified respondents' exhibits 1, 2, 4, 6 and 7 as copies of those letters. The court refused to allow these exhibits into evidence. He received $72,302.83 from Bagnuolo in May 1978, who had obtained the funds from a bank account she held jointly with Jenny. The loan was secured by a subordinated mortgage on his Lincolnwood, Illinois, home. He admitted that he had not made any payments toward the loan, the terms of which were $250 a month at 7% interest.

On cross, Woodfield denied receiving a letter from the public guardian requesting a return of the loan, but he later admitted that his attorney had inquired about the letter and the loan. It was his opinion that Jenny was reasonably lucid at all times.

Dr. Marvin Ziporyn, a board-qualified psychiatrist, testified on behalf of respondents. He determined that Jenny suffered from organic brain syndrome associated with arteriosclerosis. It was his opinion that she most likely had periods of remission in which she could be lucid; however, it was possible that she did not. During a period of remission she could have understood the provisions of the power of attorney. He admitted that there was nothing in his interview with her which could lead him to conclude that Jenny went through any periods of remission.

On rebuttal, Dr. Blumenthal stated that as long as he had known Jenny, she had gone through no periods of remission and that she was incompetent after 1974.

Dr. Leroy P. Levitt, a psychiatrist specializing in geriatrics, also testified on rebuttal. He indicated that the loss of a spouse in one who is suffering from arteriosclerosis can cause extreme stress and deterioration. There can be an apparent remission which can last from a few hours to a ...


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