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05/04/88 Roberta Hartman, As Ex'r v. Frank Townsend

May 4, 1988

WINKLER, DECEASED, PLAINTIFF-APPELLANT

v.

FRANK TOWNSEND, DEFENDANT-APPELLEE

THE RELEVANT TESTIMONY AT THE BENCH TRIAL WAS SOMEWHAT SPARSE DUE IN PART TO THE PROHIBITIONS OF THE DEAD MAN'S ACT (ILL. RE

v.

STAT. 1985, CH. 110, PAR. 8-201). WHAT TESTIMONY THERE WAS IS BEST SET FORTH AS FOLLOWS.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

ROBERTA HARTMAN, as Ex'r of the Estate of Joseph Earl

523 N.E.2d 199, 169 Ill. App. 3d 111, 119 Ill. Dec. 731 1988.IL.676

Appeal from the Circuit Court of Carroll County; the Hon. John W. Rapp, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiff, Roberta Hartman, executor of the estate of Joseph Earl Winkler, brought suit against the defendant, Frank Townsend, seeking the return of $20,000 paid by the decedent to the defendant. Following a bench trial, the trial court entered judgment in favor of defendant. Plaintiff appeals.

On August 14, 1986, plaintiff filed an amended complaint which alleged that on or about September 20, 1982, the decedent obtained a cashier's check from the National Bank of Savanna in the amount of $10,000, made payable to the defendant. Decedent delivered the check to defendant, who cashed it and applied the proceeds to pay some of his debts. On or about October 5, 1982, decedent issued a personal check payable to the defendant also in the amount of $10,000 and delivered the check to defendant, who again used the proceeds to pay off some indebtedness. The complaint went on to allege that at the times these checks were delivered to defendant, the decedent was not indebted to defendant, that they had been acquainted only a short period of time, and that if the defendant were permitted to retain the monies paid to him by the decedent, the defendant would be unjustly enriched. Plaintiff sought recovery of the monies under a theory of implied contract.

Defendant filed an answer admitting the receipt and cashing of the checks. Defendant further admitted that decedent was not indebted to him, that he performed no services for the decedent, and that he was not related to the decedent. Defendant also admitted that the money was not a gift to him. However, defendant alleged that the money was a gift to defendant's wife, Mary Clarkson Townsend (Mary).

Louis Corey testified for the plaintiff. He had known the decedent most of his life. Since his retirement, he purchased a home computer. In 1982 or 1983, decedent asked him to run several amortization schedules for him. After they had selected two, decedent asked him what his opinion was of the value of the Townsend Motel.

Plaintiff testified on her own behalf. As executor of her father's estate, she reviewed all of his bank statements back to 1979. The only withdrawals of sizable amounts were the two checks payable to the defendant. In 1982, while visiting plaintiff, decedent stated that he was working at the Townsend Motel because he was interested in buying it. In the fall of 1982, decedent accompanied her while she was looking to buy a new car. He stated that he too would like to purchase a new car but did not have the funds available to buy one due to a bad investment. After 1982, she observed her father working at the motel, putting skirting on mobile homes.

After the trial court denied defendant's motion for a directed finding, defendant testified on his own behalf. He is the sole owner of the Townsend Motel and has been so since he purchased it on April 1, 1977. Over objection, he testified that no other person had ever shared the ownership of the motel with him. He was married to Mary Clarkson in February 1985. Again over objection, he testified that Mary had lived with the decedent in Savanna, Illinois, but he was not sure for how long. He received the two checks described in plaintiff's complaint, both payable to him, from Mary Clarkson in 1982. One was a cashier's check and the other a personal check, both in the amount of $10,000. The proceeds of the checks were deposited into his personal checking account and used to pay bills.

Mary Clarkson Townsend testified on behalf of the defendant. She had lived with the defendant since 1982, and they were married in 1985. Over objection, she testified that prior to 1982, she had lived with the decedent in Savanna. She had known the decedent for seven or eight years and lived with him for four to five years. Counsel for the defendant then made an offer of proof in which Mary testified that while she had lived with the decedent, she had cooked and cleaned for him in addition to being employed as a cook in a diner. In August or September 1982, decedent told her that he wanted to give her $10,000. She instructed the decedent to have the check made out to the defendant. Decedent gave her a cashier's check in that amount, which she gave to defendant. Decedent told her that he wanted to make sure she was taken care of in case anything happened to him. She received a second check in the same amount from the decedent, who told her that she should keep it for her grandchildren since she had given the other check to the defendant. However, she told decedent what she wanted to do with the money and asked him to make it payable to the defendant. That concluded the offer of proof.

John Morris testified on rebuttal. He had lived next door to decedent since July 1979. In October 1985, Morris had just purchased a new car. Decedent remarked that he would like to get a new car, but he couldn't because he had made a bad investment.

Mary Wolfe testified on rebuttal. She was decedent's sister. She stated that Mary Townsend and decedent lived together for less than a year., Plaintiff testified on rebuttal that Mary Townsend and the decedent had lived together for less than a year.

The trial court entered judgment in favor of the defendant. The trial court found in pertinent part of the judgment order the following:

"4. There is no evidence of any note, mortgage, deed, or contract that relates to the delivery of said checks. Further, that there is no indication that the decedent, during the 40 months which elapsed between the delivery of said checks and his death, ever sought repayment of any part of or all of the Twenty Thousand Dollars ($20,000.00) received by the defendant. Further, there is no evidence of any lack of mental or physical capacity on the part of the decedent at the time of the delivery of said checks or thereafter until his death, and there is no evidence of any threat or coercion on the part of the defendant or anyone on the part of the defendant. Further, that there is no evidence of a gift from the decedent to the defendant and there can be no presumption of a gift from the decedent to the defendant because of a lack of kinship between the two."

This appeal followed.

Plaintiff contends that the trial court made several erroneous rulings concerning the application of the Dead Man's Act to the present case. Specifically, plaintiff maintains that error occurred when the trial court allowed the defendant to testify that no other persons had shared in the ownership of the Townsend Motel with him since he had owned it and ...


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