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March 11, 1994


Appeal from Circuit Court of Macon County. No. 92P190. Honorable John L. Davis, Judge Presiding.

As Corrected March 31, 1994. Petition for Leave to Appeal Denied June 2, 1994.

Lund, Green, Cook

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

This is an appeal of an order of the circuit court of Macon County denying a petition for accounting and constructive trust. Respondent Trevor Leach was granted power of attorney over his grandmother's finances eight months prior to her death. During this time, the bulk of her assets was transferred into joint tenancy accounts with right of survivorship or payable on death (POD) certificates of deposit (CDs). Respondent, who would not have inherited anything under her will, gained control of nearly all her assets upon her death in February 1992. The trial court found that respondent had not breached his fiduciary duty and denied the petition for a constructive trust. On appeal, petitioners contend the trial court's decision was against the manifest weight of the evidence because the transactions creating the joint and POD accounts were presumptively fraudulent and respondent failed to rebut this presumption.

The trial court's order merely states that having considered the evidence and written arguments of counsel, it finds in favor of respondent. No clue is given as to the particular reasoning or set of facts underlying the court's decision. A brief recitation of the facts follows.

The decedent, Wilmah Rybolt (sometimes spelled Wilma), lived with her granddaughter and her granddaughter's husband, Faye and James Parks, from 1987 until June 1991. James was appointed executor of Wilmah's estate, but neither James nor Faye is a legatee under the will. According to Trevor, Wilmah was not allowed to answer the phone while living with Faye and he was not allowed to visit with her. James Parks denied this was true. Wilmah moved out on her own volition and moved in with Trevor, his wife, and child. Trevor did nothing to suggest or encourage this move.

On July 1, 1991, Wilmah accompanied Trevor to the Bank ofMaroa to change the name on her checking account from "Wilmah Rybolt c/o Faye Parks" to "Wilmah Rybolt c/o Trevor Leach POA." The following day, Wilmah granted Trevor her power of attorney. Sometime later, Wilmah and Trevor went to the First National Bank of Decatur and directed that the name on a CD valued at $20,000 be changed to "Wilmah Rybolt, Trevor Leach POA." After it matured, they returned to the bank and used the proceeds to purchase a $20,000 CD under the name of "Wilmah Rybolt POD Trevor Leach." A bank official, Patricia Watkins, testified that she made certain Wilmah understood exactly what she was doing and had another bank employee witness the explanation. She did not hear Trevor instruct Wilmah as to how the account should be set up. She also stated that with someone like Wilmah she consistently explains joint ownership of an account, to be certain the transaction is completed as desired.

Another grandson of the decedent, Gary Rybolt, testified that despite her advanced age, Wilmah was still very active. He visited her at Trevor's home seven or eight times and when asked if he ever heard Trevor trying to exert influence over her, he replied that "you didn't tell grandma a whole lot. You listened. That's the way I was brought up." He saw no indication that she had become feebleminded. Gary's testimony was given in spite of the fact that he was a beneficiary under Wilmah's will.

Wilmah lived with Trevor and his family until she was hospitalized on February 13, 1992. Her age was in the high nineties when she died at the hospital on February 27, 1992.

At the time Wilmah moved to Trevor's home, the evidence indicates she had accounts or CDs totaling approximately $62,000. There was approximately $22,000 in an account at the Bank of Maroa. There were two $20,000 CDs at the First National Bank of Decatur. One of these $20,000 CDs was converted to a POD CD in the names of Wilmah and Trevor. The other $20,000 CD was eventually deposited in the Bank of Maroa account which listed Wilmah with Trevor as her power of attorney.

On July 22, 1991, $20,000 was transferred from the original account at the Bank of Maroa to a new account at the same bank. This account also listed Trevor as power of attorney. The $20,000 CD (not POD to Trevor) matured on January 7, 1992, and the funds were deposited in the original account at the Bank of Maroa.

According to Trevor, he became concerned that Wilmah's money was not earning a reasonable rate of interest. He contacted Alan Fagan, a securities broker with Edward D. Jones & Company (Edward D. Jones), in early January 1992. Fagan visited Trevor's home and made a presentation regarding investments that would offer a betterrate of return than her bank accounts and CDs. He sat at the kitchen table and spoke with Trevor about the investments. Wilmah was in the room, sitting 10 to 15 feet away. Trevor supplied all necessary application information and a joint account was set up, with both their names, with right of survivorship. Both Wilmah and Trevor signed the application, and Fagan explained that the account was being set up as a joint tenancy account. An initial investment of $20,200 was made.

The $20,200 for the Edward D. Jones investment came from the original Bank of Maroa account and the check (incorrectly dated January 16, 1991, rather than 1992) was signed by Trevor. An additional $10,000 was deposited into the Edward D. Jones investment on February 14, 1992, by a check drawn by Trevor on the more recent account at the Bank of Maroa. This was the day after Wilmah was hospitalized. On February 12, 1992, $5,000 from the more recent account at the Bank of Maroa was transferred by a check signed by Trevor to an investment with Shearson-Lehman Brothers (Shearson-Lehman), which was listed as Wilmah Rybolt and Trevor Leach, joint tenants with right of survivorship. In summary, at the time of Wilmah's death on February 27, 1992, the two accounts at the Bank of Maroa totaled approximately $7,000. These accounts listed Trevor as power of attorney and, regardless of the fact that the back ...

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