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07/14/87 In Re Estate of Joseph Abbot

July 14, 1987

IN RE ESTATE OF JOSEPH ABBOT, DECEASED (MICHAEL SIMANELLO


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

et al., Petitioners-Appellees, v.

Millie Armstrong, Respondent-Appellant)

510 N.E.2d 619, 157 Ill. App. 3d 289, 109 Ill. Dec. 751 1987.IL.990

Appeal from the Circuit Court of La Salle County; the Hon. Frank Yackley, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT, P.J., and BARRY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Petitioners, John Simanello, Michael Simanello, Sara Mars and Josephine Lieske, filed this citation petition to discover assets against the respondent, Millie Armstrong, executrix of the estate of Joseph Abbot, deceased. The petitioners sought to have the assets of two joint bank accounts added to the estate's inventory. The two joint accounts were in the names of the decedent and the respondent. The trial court held that the petitioners overcame the presumption of gift to the respondent and that the two joint accounts were assets of the estate. Respondent appeals.

Joseph Abbot died on August 14, 1984. He was survived by five natural children, namely, Sara Mars, Millie Armstrong, Josephine Lieske, Girardo Abbot, and Angelo Abbot. He was also survived by stepsons, Joe (John) Simanello, Michael Simanello and James Simanello.

The two bank accounts in question were originally opened by the decedent in joint tenancy with his wife, Maria Luise Abbot. One account was a joint savings account with the Streator National Bank and the second account was a credit union joint account held at the Streator Ionized Federal Credit Union. Maria Luise Abbot died on January 14, 1984. Following the funeral on January 22 or 23, 1984, there was a family gathering at the Joseph Abbot home. The decedent's health was deteriorating and he was to enter the hospital the next day with grade III carcinoma of the bladder. The testimony as to the conversation that

took place at this meeting was conflicting.

Petitioner Michael Simanello testified that at the family meeting on January 22 or 23, the decedent instructed him to take the respondent to the bank and to place the respondent's name on the decedent's bank account so that if anything happened to the decedent the respondent would be able to take care of the bills. Michael Simanello also testified that the decedent stated that any money left over after the payment of bills would be split eight ways and that Millie indicated that she understood and agreed. At trial, the other petitioners corroborated Michael Simanello's version of the conversation that took place at the family gathering and that it was decedent's intention that any remaining money be "shared and shared alike" by the children.

The respondent, Millie Armstrong, testified that on one occasion three weeks before the decedent went to the hospital, with only she and the decedent present, the decedent told her to give each one of the children $5,000. Although the respondent admitted that she was at the family gathering on January 23 or 24, she denied that the decedent stated that her name was being placed on the joint accounts to pay the bills. She also denied that the decedent stated that he wanted all the children to receive equal shares.

The day after the family meeting with the decedent, Michael Simanello took the respondent to the Streator National Bank and to the Ionized Credit Union and placed the respondent's name on the accounts as a joint tenant with the decedent. Michael Simanello then took the documents to the decedent at his home, where he signed them. The next day the decedent entered St. Mary's Hospital in Streator and remained there until February 8, 1984. From February 8 until June 21 ...


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