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Zorn v. Zorn

OPINION FILED JUNE 5, 1984.

GLADYS ZORN, EX'R OF THE ESTATE OF FRANK F. ZORN, DECEASED, PLAINTIFF-APPELLEE,

v.

CLAIR ZORN ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Livingston County; the Hon. William T. Caisley, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 5, 1984.

Defendants appeal from an order of the circuit court of Livingston County which denied their motion to vacate judgment and for a new trial. They argue on appeal that the circuit court committed error by excluding certain evidence and by admitting allegedly improper evidence.

Frank Zorn, prior to his death, had been the owner of farm property in Livingston County, Illinois. On August 13, 1980, a purported deed to this property was recorded in Livingston County whereby a remainder interest in the property was conveyed to his three children, defendants herein. The decedent retained a life estate in the property. Soon afterwards in 1980 the decedent and his wife (the plaintiff-executor herein) filed a complaint in the circuit court of Livingston County asking the court to set aside the deed because it had been procured through undue influence or fraud. Frank Zorn died before the cause had come to trial. As a result, the plaintiff filed her second amended complaint on October 28, 1982, in her capacity as executor of her late husband's estate. She sought to have the deed declared invalid and to have the farm property included in the decedent's estate. She claims that the deed is invalid because it was procured by undue influence, or because the decedent was mentally incompetent at the time of the conveyance.

Before trial, the plaintiff claimed protection under section 8-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 8-201), commonly known as the Dead Man's Act. She moved, in limine, to exclude possible testimony by the defendants regarding conversations and transactions with the decedent. The plaintiff also moved in limine to exclude all evidence of her right to renounce the will and thereby receive one-third of the estate property. The court granted these motions over the defendants' objections.

The trial began on March 17, 1983, before an advisory jury in the chancery division of the circuit court of Livingston County. Two expert medical witnesses testified on behalf of the plaintiff that, due to chronic organic brain disease, the decedent lacked sufficient mental capacity to understand the nature and effect of his actions at the time of the execution of the deed. The plaintiff also introduced testimony to the effect that the gift tax upon the conveyance of a valid deed would be much greater than the inheritance tax levied if the deeded property should pass by the will. Two of the defendants, Clair Zorn and Eunice Wilson, were also called by the plaintiff to testify as adverse witnesses.

After all of the evidence had been presented, the two issues involved were submitted to an advisory jury in the form of special interrogatories. In answering these interrogatories the jury found that the decedent lacked sufficient mental capacity to make the deed in question, and that before and at the time of the execution of the deed, the decedent was under the undue influence of two of the defendants. The circuit court then accepted these findings and entered a decree against the defendants. The defendants timely moved to vacate the judgment, and the court denied the motion on July 13, 1983. A notice of appeal was filed on August 1, 1983.

On appeal, the defendants claim that the plaintiff waived the protection of the Dead Man's Act when she called the defendant Eunice Wilson as an adverse witness and questioned her about an event which took place in the presence of the decedent. At that point, the defendants urge, Wilson should have been allowed to fully explain the event with further testimony, including any conversations with the decedent in that regard. They argue that the trial court's refusal to allow such testimony constitutes reversible error. We agree.

At trial, the plaintiff called the defendant, Eunice Wilson, to testify as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102). In answer to the questions put to her, Wilson testified that she and her brother (also a defendant herein) had the deed in question drawn in Pontiac, Illinois. On August 12, 1980, they drove to their father's and stepmother's residence in Wabash, Indiana, for the purpose of having their father sign the deed. Wilson testified that while they were in Wabash she and her brother drove the decedent to a bank. She admitted that they did not pay the decedent for the farm property. She testified that when they left Wabash the deed had been signed. After this testimony defendants' counsel approached the bench and argued that the plaintiff had waived the protection of the Dead Man's Act and requested that the defendants be allowed to testify about certain conversations they had with the decedent several months prior to the trip in question. He argued that these conversations would show that the decedent had requested the defendants to act as they had, thus rebutting the inferences caused by Wilson's limited testimony. The trial court refused to allow such testimony.

Section 8-201 of the Code of Civil Procedure (Dead Man's Act) states in pertinent part:

"In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:

(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event."

In our opinion the core issue is the meaning of "event" in the statute cited above. We note first that the present statute reiterates that of 1973 (Ill. Rev. Stat. 1973, ch. 51, par. 2(1)) when a significant change was made by the legislature. The prior statute (Ill. Rev. Stat. 1971, ch. 51, par. 2) referred throughout to "the same conversation or transaction." We assume that the legislature ...


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