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06/16/87 A. Theodore Kamberos, As v. Ann Magnuson

June 16, 1987

PATRICIA M. MURRAY, DECEASED, PLAINTIFF-APPELLANT

v.

ANN MAGNUSON, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

A. THEODORE KAMBEROS, as Independent Adm'r of the Estate of

510 N.E.2d 112, 156 Ill. App. 3d 800, 109 Ill. Dec. 491 1987.IL.823

Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Scotillo, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

This is an appeal from the granting of summary judgment in favor of defendant.

In May 1983, plaintiff, Mrs. Patricia Murray, filed suit against defendant, Ann Magnuson, seeking imposition of a constructive trust upon monies bequeathed to defendant allegedly for plaintiff's benefit by the will of John Abens, deceased. The claim for constructive trust is founded upon the allegation that defendant abused a confidential relationship she shared with Abens. Defendant filed a motion to dismiss which was denied.

Thereafter, on March 28, 1984, plaintiff Murray died. Her son-in-law, A. Theodore Kamberos, was appointed independent administrator of her estate and was substituted as party plaintiff in the place of Murray on November 7, 1984.

A motion for summary judgment was filed by defendant and discovery undertaken pursuant to a court order stating that the taking of depositions did not waive the application of the Dead Man's Act. (Ill. Rev. Stat. 1985, ch. 110, par. 8-201.) Depositions of defendant Ann Magnuson and Nora Kamberos, daughter of Patricia Murray and wife of the independent administrator, were taken. Plaintiff filed responsive pleadings incorporating the discovery depositions. Defendant filed a reply attaching the same depositions. Summary judgment was entered in favor of defendant. Plaintiff appeals.

John Abens died in 1981, survived by his wife and their three children. Defendant Magnuson was the sister-in-law of Abens. She is also the co-executor and co-trustee of his estate. Abens' will has a specific bequest of $400,000 to Magnuson. Plaintiff is claiming the $400,000, seeking imposition of a constructive trust for her benefit on this bequest. The evidence upon which plaintiff relies to establish the constructive trust consists of certain conversations with the decedent during his lifetime. The trial court ruled that the Dead Man's Act barred evidence of the conversations with the decedent or acts in the presence of the decedent. This ruling effectively left the plaintiff without any admissible proof to support her theory.

The discovery depositions developed the following facts. During his lifetime, Abens requested that Magnuson take care of Mrs. Murray, his mistress, after his death. However, he never stated that Magnuson was to give the $400,000 legacy to Murray. Although the bequest to Magnuson was not conditioned on Magnuson's taking care of Murray, Magnuson told Murray that she would be taken care of.

After Abens died, Magnuson gave Mrs. Murray $1,000 from her personal funds. Murray asked for more money but Magnuson refused until the estate was settled.

Patricia Murray was, until her death, married to James A. Murray. Patricia and James had six children. Mrs. Murray was the mistress of John Abens from 1968 or 1969 until his death in 1981 but never resided with him. She worked for Abens' company for approximately four years from 1968 through 1972, and then had a part-time job elsewhere from 1973 to 1979. Mrs. Murray left her family home in June or July of 1976 to reside in an apartment with two of her daughters. The application for the lease of the apartment was in the name of Ann Magnuson. For approximately one year in 1976, Magnuson paid the rent to the rental agent ...


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