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05/25/89 Delores E. Idleman Et Al., v. Reatha I. Raymer Et Al.

May 25, 1989





539 N.E.2d 828, 183 Ill. App. 3d 938, 132 Ill. Dec. 265 1989.IL.800

Appeal from the Circuit Court of Cumberland County; the Hon. H. Dean Andrews, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.


On November 24, 1984, plaintiffs Delores E. Idleman, Joann Boley, and Carol Van Scyoc, executor of the estate of Lela Van Scyoc, deceased, brought suit in the circuit court of Cumberland County against defendants Reatha I. and Roy G. Raymer seeking to set aside a deed dated August 14, 1976, by which Wesley Miller, deceased, had conveyed to defendants, who were wife and husband, an interest with him as joint tenants in his only real estate, a 200-acre tract of farmland. Plaintiffs Carol Van Scyoc, Delores Idleman, and Joann Boley and defendant Reatha I. Raymer were the only children of Wesley Miller. Under the terms of his will, executed August 10, 1974, which had been admitted to probate, defendant Reatha I. Raymer would have received a two-fifths interest in the tract, and the other three daughters would each have taken a one-fifth share. Plaintiffs contended the conveyance had been obtained by defendants in breach of their fiduciary relationship with Miller.

After a bench trial, the court entered an order on September 6, 1988, finding in favor of defendants. Plaintiffs have appealed, contending: (1) the decision was contrary to the manifest weight of the evidence; and (2) the court erred in evidentiary rulings, the most serious of which concerned the application of the Dead Man's Act (Ill. Rev. Stat. 1985, ch. 110, par. 8 -- 201). We conclude the evidence supported the court's decision, and no reversible error resulted from the court's evidentiary rulings. Thus, we affirm.

The following facts were not seriously disputed. Wesley Miller died on July 30, 1984, less than one month short of his 82nd birthday. His wife had predeceased him some 10 years earlier. Forty days after her death he executed his previously described will. Prior to the execution of the deed which is the subject matter of this suit, Miller had granted Reatha Raymer his general power of attorney on March 12, 1975. Defendants lived in a two-bedroom home which was about two miles from the Miller farmland. Apparently, when Miller's wife died, defendants converted an enclosed porch in their home into a bedroom with stool and lavatory for Miller, and he came to live with them. Defendant Roy Raymer farmed the 200-acre tract during the time Miller lived with defendants. Reatha Raymer cared for her father, gave him insulin shots, kept him clean and, on occasion, took him to see his physician. Defendants do not dispute a fiduciary relationship between Miller and defendants existed at the time of the conveyance. This situation was further complicated because the same firm of attorneys who drafted Miller's will and the deed setting up the joint tenancy also represented defendants.

Although plaintiffs do not contend Miller lacked capacity to make the questioned deed, Miller's mental condition bears upon his susceptibility to influence which might have been imposed upon him through use of the fiduciary relationship. Miller's physician testified that, at the time of execution of the deed, Miller did suffer from diabetes and early evidence of Parkinson's disease, but his mind was then sound. However, by 1978, Miller had been hospitalized for a progressive disease which would eventually cause memory loss. The notes of Miller's physician indicated the physician considered Miller had exhibited poor judgment for the previous five to six years, a period of time starting long before the execution of the deed. The physician's notes also indicated Miller had been hospitalized twice in 1975 and had shown some deterioration of his ability to think during this period of time. Nevertheless, the physician stated a definite opinion Miller was capable of transacting business at the time the deed was executed. Miller's banker also testified to Miller's competency when the deed was executed. Various other persons who had a relationship with defendants, such as would likely make them feel favorably toward defendants, also testified Miller appeared competent in 1976.

Some of the same witnesses who testified as to Miller's competency also testified Miller had spoken to them indicating much gratitude for what defendants had done for him. One such witness, whom Miller had visited in Florida in December 1976, testified Miller told her he was giving defendants and their daughter all of his property because only they had treated him properly. The widow of the deceased lawyer who had drafted the papers effectuating the joint tenancy between Miller and defendants testified she shared an office with her husband at that time and was present during various visits concerning the transaction. She stated Miller came to the office and told them he wanted to make a deed to defendants because of their kindness to him. According to the witness, her husband reminded Miller he had other children, but Miller said he wanted defendants to have the property and had agreed with them that they could have the property as a reward for caring for him in the past and continuing to do so in the future. This witness further testified her husband made Miller think about the transaction and return several times before consummating the transaction. The witness admitted her son was attorney for defendant Roy Raymer.

Plaintiffs' evidence indicated defendants had been secretive about the transaction setting up the joint tenancy. Testimony of plaintiffs Delores Idleman and Joann Boley that the execution of the deed was never disclosed to them until after their father's death was not refuted by defendants. Financial statements given by defendant Roy Raymer to his bank appeared to fail to indicate defendants claimed any interest in the 200 acres beyond his rights as a tenant. Plaintiffs also point out defendant Reatha Raymer was named as executor in Miller's will, and defendant Roy Raymer shared a lock box with Miller, but they did not present his will for probate until four months after his death.

Based upon the evidence presented, we do not find the decision of the circuit court to be contrary to the manifest weight of the evidence. In reaching that decision, the court properly applied the formula set forth in Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872. Defendants do not dispute that the existence of the fiduciary relationship between them and Miller gave rise to a presumption that the transaction in which they obtained the joint interest in the 200-acre tract was fraudulent. The Franciscan Sisters court held that such a presumption was subject to the Thayer "bursting bubble" theory. Under this rule, once the existence of the presumption is established, the burden of going forward is on the party against whom the presumption operates to produce evidence to negate the presumption. If that is done, the presumption ceases to exist, and the proponent of the theory of fraud has the burden of proving the fraud.

The most difficult aspect of the operation of the "bursting bubble" theory of presumptions in civil cases is the question of the quantum of evidence necessary to negate the presumption. The Franciscan Sisters opinion stated that, because there is no "fixed rule," at times the amount of evidence necessary may be small but at other times it may be "substantial." (Franciscan Sisters, 95 Ill. 2d at 463, 448 N.E.2d at 877.) Because the alleged perpetrator of the fraud there was a lawyer and the alleged victim a client, that court held under those circumstances the presumption could only be rebutted by evidence which was "clear and convincing." (Franciscan Sisters, 95 Ill. 2d at 465, 448 N.E.2d at 878.) Here, the circuit court applied the "clear and convincing" standard and found the presumption had been rebutted.

The instant defendants were not lawyers. Plaintiffs note that in Lamb v. Lamb (1984), 124 Ill. App. 3d 687, 694, 464 N.E.2d 873, 878, this court stated Franciscan Sisters seemed to indicate the clear and convincing standard was also applicable when the alleged perpetrator of the fraud was not a lawyer. Plaintiffs also point out that in this case the law firm involved in the questioned transaction had represented both Miller and the defendants. We need not decide the quantum of proof necessary in these circumstances, for the circuit court here applied the clear and convincing standard, which is the highest proof required in a civil case. The determination of whether the presumption had been rebutted was a factual determination ...

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