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04/13/88 In Re Estate of John J. Puetz

April 13, 1988

IN RE ESTATE OF JOHN J. PUETZ, DECEASED (VERA M. PUETZ,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Adm'r with Will Annexed, Petitioner-Appellant, v.

First National Bank of Skokie, as Trustee, et al.,

Respondents-Appellees)

521 N.E.2d 1277, 167 Ill. App. 3d 807, 118 Ill. Dec. 584 1988.IL.527

Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Petitioner, Vera Puetz, filed suit in the circuit court of McHenry County against the respondent land trustee, First National Bank of Skokie, and the land trust's beneficiaries, John H. Puetz, Marilyn Cherry, and Suzanne P. Wregge, to set aside the inter vivos land trust created by her deceased husband, John J. Puetz. Petitioner alleged that the creation of the land trust constituted a fraud upon her marital rights. Petitioner sought to impose a constructive trust on the trust res to the extent of her statutory share as surviving spouse. (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 2-8.) The trial court granted respondents' motion for summary judgment, and this appeal followed. We reverse and remand.

On appeal, petitioner raises two issues: (1) the trial court erred in granting summary judgment to respondents because questions of material fact exist, and (2) as a matter of law, decedent's revocable trust operated as a fraud on her marital rights. For purposes of this appeal, we need only address the first issue.

When the motion for summary judgment was made, the evidence consisted of the following: the pleadings, the affidavit and the deposition of the petitioner, the affidavit and deposition of decedent's son, John H. Puetz (a land trust beneficiary), income tax statements for the decedent's estate, and the documents related to trust No. 5258, a former trust of the decedent, and trust No. 5452, the subject of this litigation.

The relevant facts appearing in the above-described evidence are as follows. Petitioner testified by deposition that after graduating from high school, she clerked in a shoe store; she then married John J. Walsh, who died after they had been married for 22 years. During this marriage, petitioner did not work. After her first husband's death, petitioner worked two jobs while her daughter attended college. After another period of unemployment, petitioner went to work as a part-time bookkeeper for decedent. They married on October 24, 1964, and petitioner did not work after their marriage. Decedent and petitioner lived together as husband and wife until decedent's death on June 8, 1982. Petitioner testified that decedent never informed her of the disputed trust No. 5452.

At the time of his death, decedent owned in joint tenancy with the petitioner a house valued at $95,000. Petitioner was a beneficiary of several insurance policies and held joint bank accounts with decedent. The total approximate value of these accounts and policies was $28,000. This was the value of the assets received by petitioner by reason of decedent's death.

On January 30, 1962, decedent and his first wife, Frances, executed a trust agreement (trust No. 5258). They were joint beneficiaries of said trust, and when Frances died in or about 1963, the decedent became the sole beneficiary.

On April 6, 1966, decedent executed the trust agreement (trust No. 5452) that is the subject of this lawsuit. By this instrument, which named the children by his first marriage as sole beneficiaries upon his death, substantially all of decedent's real property was included in trust for his lifetime. The res of land trusts Nos. 5258 and 5452 was essentially the same. At the time of decedent's death, the res in the trust No. 5452 had an estimated aggregate value of $450,000.

On January 13, 1983, the decedent's will was admitted to probate; and the petitioner was appointed administrator with will annexed. Petitioner filed an affidavit of heirship indicating that the decedent was survived by three adult children, John H. Puetz, Marilyn Cherry, and Suzanne P. Wregge (respondents). On March 17, 1983, an inventory of the estate was ...


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