Appeal from the Circuit Court of Kane County; the Hon. John L.
Nickels, Judge, presiding.
JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Respondent, Shirley Martinek, appeals from an order of the circuit court of Kane County that determined that respondent and the estate of her deceased husband, George Martinek, each held a 50% interest in certain real estate as tenants in common.
Respondent's sole argument in this court is that she and her deceased husband held the property in question not as tenants in common but as joint tenants and, therefore, she was entitled, by statute (Ill. Rev. Stat. 1983, ch. 76, par. 1a), to take the whole estate upon the death of her husband as an incident of the right of survivorship.
On February 3, 1968, Joseph and Shirley Seifert entered into an installment contract with W.T. Driver, in his capacity as Administrator of Veterans' Affairs, by which they agreed to purchase certain real estate located in Batavia. Paragraph 18 of the installment contract provides that once the buyers satisfied the terms of the agreement and upon their request, the seller shall execute and convey to the buyers a special warranty deed containing the language "NOT TENANTS IN COMMON BUT JOINT TENANTS." In similar vein, paragraph 25 prescribes that the buyers' interest in both the installment contract and the property "shall be in joint tenancy" and that, once the buyers complied with all the terms and provisions of the agreement, the seller shall execute and deliver a special warranty deed to the buyers that conveyed title to the property "not as tenants in common but as joint tenants."
In August 1968, the Seiferts assigned all their right, title, and interest under the installment contract to George and Shirley Martinek. The seller consented to the assignment. The Martineks, as assignees, agreed to perform all the terms and conditions of that contract. The assignment referred in express terms to the installment contract of February 3, 1968, and stated, in a note, that the contract should be affixed to the original assignment document.
On September 7, 1983, George Martinek executed a will in which he devised a life estate in the subject property to his wife, Shirley, and a remainder interest to Bonnie Lee Behner and Frederick G. Behner III (Behners).
George Martinek died testate on June 3, 1984. Respondent is the surviving spouse of the deceased while Bonnie Behner is the decedent's stepdaughter. Petitioners, Bonnie and Frederick Behner, who are coexecutors of the will, filed a petition for probate of the will on July 11, 1984.
Approximately two months later, petitioners filed a petition in which they asked the court to enter an order declaring the rights the deceased's estate possessed in the subject real property. Their petition alleged that the estate and Shirley Martinek each owned a 50% interest in the realty as tenants in common. In rejoinder, respondent filed a motion to dismiss that petition and a supporting memorandum of law in which respondent asserted that she and her husband, while he was still alive, possessed the property as joint tenants and that upon his death she was entitled to the full interest in the real estate by virtue of the right of survivorship.
On October 12, 1984, the trial court entered an order in which it found (1) that the instant assignment constituted a "conveyance" of the Seiferts' interest in the property to the Martineks, (2) that the conveyance did not contain an express declaration of joint tenancy, and (3) that the conveyance was ineffective to create a joint tenancy between respondent and her now-deceased husband. Accordingly, the court below declared that the respondent and the estate of her dead husband each owned a 50% interest in the property as tenants in common.
Respondent argues in this appeal, as she asserted in the court below, that as a result of the assignment of the installment contract, she and her husband became the equitable owners of the property in question as joint tenants and that, upon his death, she received the full interest in the real estate by virtue of the right of survivorship. In particular, she challenges the trial court's finding that the assignment of the contract for deed did not create a joint tenancy in the Martineks because the assignment did not contain an express declaration of joint tenancy in contravention of section 1 of "An Act to revise the law in relation to joint rights and obligations" (Act) (Ill. Rev. Stat. 1983, ch. 76, par. 1). She maintains that section 1a of the Act (Ill. Rev. Stat. 1983, ch. 76, par. 1a), not section 1, controls this case. It is her position that, pursuant to the right of survivorship recognized in section 1a, she is entitled to receive title to the entire realty upon satisfaction of the terms of the installment contract, for the reason that she and her now-deceased husband, as assignees of the Seiferts' equitable interest in the property as joint tenants, held equitable title to the realty as joint tenants.
Section 1 of the Act provides:
"No estate in joint tenancy in any lands, tenements or hereditaments, or in any parts thereof or interests therein, shall be held or claimed under any grant, legacy or conveyance whatsoever heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass not in tenancy in common but in joint tenancy; and every such estate other than to executors and trustees (unless otherwise expressly declared as aforesaid), shall be deemed to be in tenancy in common and all conveyances heretofore made, or which hereafter may be made, wherein the premises therein mentioned were or shall be expressly declared to pass not in tenancy in common but in joint tenancy are hereby declared to have created an estate in joint tenancy with the accompanying right of survivorship the same as it existed prior to the passage of `An Act to amend Section 1 of an Act entitled: "An Act to revise the law in relation to joint rights and obligations," approved February 25, 1874, in force July 1, 1874,' approved June 26, 1917." (Ill. Rev. Stat. 1983, ch. 76, par. 1.)
"Whenever any contract for the purchase of real estate hereafter entered into shows that the title is to be taken by the vendees as joint tenants and not as tenants in common, and one or more of such vendees die before the delivery of the deed to such vendees, then in such case no heir, devisee or legal representative of such deceased vendees shall have or take any right, title or interest under the contract or in such real estate, but the obligation of the vendor or vendors under the contract (upon the performance thereof) shall be to convey such real estate to such surviving vendee or vendees, and if all such vendees die before such delivery then to the heirs or ...