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11/09/88 In Re Estate of Louise Rothenberg

November 9, 1988

IN RE ESTATE OF LOUISE ROTHENBERG, DECEASED (LOUISE C.


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Koehler, Petitioner-Appellant, v.

Lois H. Siebrandt, Indiv. as Ex'r of a purported Last Will

and Testament of Louise Rothenberg, Deceased, and as

Beneficiary of Bremen Bank and Trust Company,

et al., Respondents-Appellees)

530 N.E.2d 1148, 176 Ill. App. 3d 176, 125 Ill. Dec. 739 1988.IL.1627

Appeal from the Circuit Court of Cook County; the Hon. Arthur C. Perivolidis, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

This case involves a dispute between two sisters over the Disposition of property made by their mother before her death.

The complaint brought by Louise Koehler in supplementary proceedings in the estate of Louise Rothenberg was in four counts. Count III was dismissed by agreement. Count I alleged lack of testamentary capacity to execute a will; count II alleged undue influence on the part of the defendant Lois Siebrandt over her mother, Louise Rothenberg, in the execution of the will; and count IV alleged that the defendant was a fiduciary who used undue influence over a mentally incompetent mother to dictate a change of beneficiaries in a land trust and prayed for imposition of a constructive trust upon Louise Koehler. The plaintiff had filed a jury demand, but count IV was severed and tried before the court. Counts I and II are still pending in the circuit court. In his finding in favor of the defendant, the trial Judge expressly held that the evidence did not establish a fiduciary relationship between the defendant and her mother. The plaintiff contends that that finding was against the manifest weight of the evidence.

An understanding of the issue requires a preliminary Discussion of the law. Once a fiduciary relationship has been shown, the law presumes that any transaction between the parties by which the fiduciary has profited is fraudulent. The burden then shifts to the fiduciary to prove by clear and convincing evidence that the transaction was not the result of undue influence. If the burden cannot be met, the transaction will be set aside. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 247 N.E.2d 894; In re Estate of Trampenau (1980), 88 Ill. App. 3d 690, 410 N.E.2d 918.) Thus, the plaintiff's position may be summarized: The trial court's finding that Lois Siebrandt was not a fiduciary to her mother was against the manifest weight of the evidence, and, therefore, Lois Siebrandt was required to establish the fairness of the transaction by clear and convincing evidence, which she failed to do, as a matter of law. That being so, we are asked to reverse the judgment and remand with directions to enter judgment for the plaintiff. Alternatively, we are asked to remand for a new trial.

The burden of proving the existence of a fiduciary relationship lies with the party seeking relief. (Farmer City State Bank v. Guingrich (1985), 139 Ill. App. 3d 416, 487 N.E.2d 758.) A fiduciary relationship may be found in one of two ways: It may be presumed from the relationship of the parties, such as in an attorney-client relationship, or, it may arise from the facts of particular situation, for example, where there is trust reposed on one side and resulting superiority and influence on the other. (Farmer City State Bank, 139 Ill. App. 3d at 422-23.) Where the alleged fiduciary relationship does not exist as a matter of law, the facts from which such a relationship arises must be proved by clear and convincing evidence. (Apple v. Apple (1950), 407 Ill. 464, 95 N.E.2d 334.) The immediate issue before us, therefore, is whether the trial court's Conclusion that the plaintiff had failed to establish a fiduciary relationship between the defendant and her mother by clear and convincing evidence was clearly erroneous.

Louise Rothenberg owned real estate consisting of a family home and adjacent lots in Cook County (the subject property). On May 16, 1976, she added the plaintiff as a joint tenant on the subject property. In February 1977, Louise Rothenberg met in the office of an attorney, Leland Rayson, with the plaintiff and another daughter, Ruth Birdwell. Birdwell testified that she came from Texas at her mother's request. Her mother was upset with the plaintiff over the subject property. After the meeting, Rayson sent a letter to the plaintiff stating that her mother was confused at the time she made the plaintiff a joint tenant. Shortly thereafter, the plaintiff and her attorney met in Rayson's office with her mother, the defendant and Ruth Birdwell. The plaintiff executed documents conveying her interest in the real estate back to her mother. She also transferred back to her ...


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