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05/11/87 In Re Estate of Velma Leota Casey

May 11, 1987

IN RE ESTATE OF VELMA LEOTA CASEY, DECEASED (CAROL LEE


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Ivey, Ex'r of the Estate of Velma Leota Casey,

Deceased, Petitioner-Appellee, v.

JAMES E. PRICE et al., Respondents-Appellants)

507 N.E.2d 962, 155 Ill. App. 3d 116, 107 Ill. Dec. 809 1987.IL.607

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. GREEN and LUND, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

The executor of the estate of Velma Leota Casey brought a citation proceeding to recover certain estate property which was in respondents' possession. The respondents claimed the property in question was theirs through an inter vivos gift from the decedent. A Sangamon County circuit court jury concluded that all property in question, excepting one automobile, belonged to the estate. The respondents appeal, claiming the jury was improperly instructed as to the burden of proof and the estate failed to set forth a prima facie case of ownership with regard to certain certificates of deposit.

The decedent died testate on December 27, 1983. Through decedent's will, her entire estate passed to her nephew, Carol Ivey. The will also named Mr. Ivey executor. Shortly after the decedent's death, the executor filed a citation petition seeking to recover assets of the estate from James Price, a nephew of decedent, and his wife, Doris.

The property at issue included certificates of deposit worth approximately $120,000. The certificates were held variously in the decedent's name, jointly between the decedent and her late husband, or in the late husband's name alone. Other property included a money market account, which had a balance of $14,332.36 shortly before the decedent's death, that had been drawn down to $87.33 at the time of the petition. The parties also contested ownership of savings bonds, the decedent's household furnishings and personal property, and the decedent's residence. Because we must examine the weight of the evidence to decide the issues before us, we will summarize the trial testimony.

At trial, Roger Bucher, assistant vice-president of the Illinois National Bank, identified the certificates of deposit as representing deposits at his institution. Bucher noted the certificates were held by the decedent, her late husband, or the two of them jointly and further testified his bank required a written request from the depositor to transfer any certificate of deposit. Bucher testified four of the certificates were "non-transferable," meaning they could not be transferred without written assignment pursuant to Federal regulation. Bucher noted none of the certificates of deposit had been formally transferred from the decedent's and her late husband's names, but conceded he had no personal knowledge whether the testatrix might have given the certificates of deposit to another before her death.

Richard Chard, assistant cashier at Rochester [Illinois] State Bank, testified Mr. Price had redeemed $800 in savings bonds held jointly by the decedent and her late husband. Although each bond was endorsed with the decedent's signature, Chard stated it was his impression Mr. Price was redeeming the bonds for the decedent. Chard had no knowledge of what arrangement might have occurred between the respondents and the decedent outside his presence. Chard also testified that interest on the bonds was attributed to the decedent for tax purposes, but acknowledged this was a function of the name appearing on the bond.

Carol Ivey and his wife identified a list of household items as property they had personally observed in the decedent's home prior to her death. Jim Lesniak, a title insurance agent, testified that record title to the decedent's home was in her name alone. Lesniak stated the abstract of the title to the decedent's home, which was ...


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