Appeal from the Circuit Court of Cook County; the Hon. George
J. Shaller, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Plaintiff, Blenda Nordlund, sought the declaration of a constructive trust in her favor over certain assets she transferred to her son, who is now deceased, and her daughter-in-law, defendant Evelyn Nordlund. The trial court entered a judgment in defendant's favor at the close of plaintiff's case and plaintiff appeals.
Plaintiff raises the following issues: (1) whether plaintiff established the elements necessary for the creation of a constructive trust; (2) whether the burden of establishing donative intent shifted to the donee once plaintiff, the donor, challenged the validity of the gift; and (3) whether the court correctly refused to allow plaintiff to testify to a conversation between plaintiff and defendant.
The events complained of in this suit occurred in 1978 at which time plaintiff, Blenda Nordlund, was 85 years old. At the time of trial Blenda was 89 years old. Plaintiff's husband, Albert, had died in 1964. They had two children, Roy Nordlund and Blanche Nordlund Buell. Roy Nordlund was married to Evelyn, defendant in this suit, and they had several children.
Testimony at trial established that Blenda and Albert had operated a machine shop as a sole proprietorship for many years. Roy had worked in the shop since he was about age 16 and, after his father's death, he was the shop's sole employee. Prior to June 25, 1978, Blenda maintained the books and records of the business and performed other miscellaneous office tasks. Blenda paid Roy a salary of approximately $200 a week and paid herself $65 a week out of the business checking account.
On June 23, 1978, Blenda suffered a stroke and was hospitalized for several weeks. She then moved into Roy and Evelyn's home.
Plaintiff attempted to testify to a conversation she had with Roy shortly after returning from the hospital but the trial court struck the testimony on grounds of hearsay. Evelyn was allegedly present during this conversation though she denied it. The excluded testimony was:
"I told him that the doctor told me that I should not be alone anymore. I told Roy that and it would [be] up to you to take over the job. And he said that he would have to take over the shop. And he didn't seem to say very much. He said — then, I said, `Well, I got to be worried a little bit and what is going to happen to me?' So he said, `Don't worry, Ma, I will take care of you.'"
Blenda further stated that nothing more was said on this topic.
Blenda testified that sometime in July, after moving into Roy's home, she asked Evelyn to look up the telephone number of an attorney, Barry Kroll. Kroll's father had been a personal attorney for Blenda's family and Kroll had taken over part of his father's practice.
On July 19, 1978, Blenda's grandson, Robert Nordlund, drove Blenda to Kroll's office to meet with Kroll. Kroll's father had prepared a will for Blenda dated in 1975. In this will Blenda bequeathed to Roy the machine shop business, the real estate it occupied, and a vacation cottage in Cary, Illinois. Blenda bequeathed to Blanche her residence at 2919 North Kolmar in Chicago, and a savings account.
At the conclusion of Blenda's conference with Kroll, Blenda executed deeds to the business real estate and the Cary property and signed a bill of sale for the business assets conveying these items as a gift to Roy and Evelyn in joint tenancy. A codicil to Blenda's will also was executed and witnessed. The codicil specifically referred to the current gift and stated that the bequest contained in the will was satisfied.
Blenda testified that she told Kroll that she wanted Roy to have the business' building, machinery, tools and inventory. She did not know that she transferred the Cary property or the business' $24,000 bank account to Roy and defendant and she did not sign any documents transferring the shop building to them. Blenda also testified that at that time she was unable to see well enough to read an ordinary document and could not hear well.
On October 22, 1978, Roy died of a heart attack. The business ceased operations. Blenda, who had been living with Roy and Evelyn, was readmitted to the hospital shortly after her son's death. When she was discharged she did not return to Evelyn's home. Blenda testified that she returned to the business only once after her stroke and ...