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March 25, 1994


Appeal from Circuit Court of Schuyler County. No. 91CF4. Honorable Alfred L. Pezman, Judge Presiding.

As Corrected April 4, 1994. Second Correction April 29, 1994.

Honorable Robert W. Cook, J., Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

On October 27, 1972, Linn W. Eaton, Sr., and Mildred K. Eaton conveyed to their children, plaintiff Cynthia Ann Hall (Hall) and defendant Linn William Eaton, Jr. (Eaton), as joint tenants, a 300-acre farm. In count I of her complaint, Hall sued Eaton for partition of the farm. Partition has now been completed, the land sold, and the proceeds distributed. In count II, Hall sought an accounting from Eaton for his use and occupancy of the land between 1972 and 1991. At trial, Hall limited her request for accounting to the years 1983 through 1991. The trial court awarded Hall $18,284.25 as the fair rental value of her one-half interest in the 300-acre farm for the years 1988 through 1991, including 6% prejudgment interest. Hall appeals, contending the trial court erred in denying her prayer for an accounting for the years 1983 through 1987. We affirm.

At the bench trial, it was established that the parties' parents owned and lived on a 275-acre farm (home farm) approximately two miles from the 300-acre farm. Hall testified she moved away from home in 1967 and has never since lived on either farm, but she visitedthe farms every weekend until her marriage in the early 1980s and twice a month thereafter. She testified Eaton lived with the parents on the home farm and in 1972, on his return from school, began managing the family's cattle herd. Hall stated it was not until the death of Eaton, Sr., in 1983 that Eaton took over the farming duties his father had performed. He continued these duties until 1991, the year of Mildred Eaton's death and the year Hall filed suit.

Hall stated when she asked her mother what she should do about her one-half interest in the 300-acre farm, Mrs. Eaton responded their accountants were taking care of the matter. Hall did not inquire further about any income accruing from the 300-acre farm. Until filing suit Hall never requested or received any accounting of the rents or profits, nor did she receive any income or crops. Hall added she never paid any real estate tax on the farm, and she never contributed any funds toward farm expenses. Hall, after Eaton, Sr.'s death, saw checks made out to Eaton, which she believed came from sale of the cattle he managed. However, she could not recall dates or amounts of the checks.

Eaton testified he left home in 1957 and spent four years studying at the University of Illinois, six years at the University of Missouri graduate school, and then did research at various institutions until 1972. He received his Ph.D. degree in agriculture from the University of Missouri in 1969. Eaton returned to the home farm in 1972, after his father had major cancer surgery. Eaton thereafter assisted in managing the cattle business and labored on both farms. After Eaton, Sr., died in 1983, Eaton did most of the physical work involved in managing the cattle business, although his mother helped when she was able.

Eaton stated no separate records were kept of money received from operations on the 300-acre farm, claiming "it was one pool, one total income as far as my parents were concerned." After Eaton, Sr.'s death, income from both farms was placed in two joint accounts, held by Eaton and Mrs. Eaton, with Mrs. Eaton's social security number on them. Eaton kept no records of deposits or withdrawals from those accounts but noted some of the income may have been deposited into an account with his name on it. Upon Mrs. Eaton's death, Eaton took over the joint accounts. Until 1988, Eaton did not file income-tax returns because all farm income prior to that had been reported on Mrs. Eaton's tax returns. When Eaton began filing income-tax returns in 1988, he and Mrs. Eaton "essentially split" the income and expenses from both farms, so their returns were nearly identical.

Eaton testified he was never compensated in a regular manner for assisting his parents in the farm operation. Instead, he receivedgifts from time to time. In 1988, after Mrs. Eaton had had a stroke and spent months recuperating from it, Eaton became his mother's tenant. Eaton stated his parents were in possession of the 300-acre farm when they deeded it to Eaton and Hall in 1972, and that possession continued in the parents until Mrs. Eaton's death in 1991. Eaton acknowledged he never gave Hall a written accounting of the income or profits from the 300-acre farm, and he never gave her income or crops from the farm.

Three expert witnesses testified to the appropriate cash rental value for a one-half interest in the 300-acre farm for the years 1983 through 1991. Harold Eugene Vaughn, a professional farm manager, determined $51,502.50 was a fair value. Wayne Tomlinson, a real estate broker and appraiser estimated the net income of a one-half share would be $5,307.02 per year. Tomlinson testified the farm sold for $99,000, which amounted to approximately two-thirds of the farm's appraised value. Darrell L. Dunteman, an agricultural financial consultant and accountant, suggested an average net income for a one-half share of $5,387 per year.

The trial court concluded an accounting should be made but found no evidence demonstrating Eaton had any income from the property prior to 1988. While Eaton may have been given gifts from his parents, those monies likely paid for Eaton's education, and no evidence indicated those gifts were accumulated from the farm income. The court indicated an accounting for the years 1988 through 1991 would be appropriate and concluded an average of Vaughn's and Dunteman's figures would adequately reimburse Hall. Because of the delay in the accounting, the court added 6% interest to the judgment. This appeal followed.

A "gift" is "a voluntary, gratuitous transfer of property by one person to another where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee." ( Moniuszko v. Moniuszko (1992), 238 Ill. App. 3d 523, 529, 606 N.E.2d 468, 472, 179 Ill. Dec. 636; see also Hugh v. Amalgamated Trust & Savings Bank (1992), 235 Ill. App. 3d 268, 271, 602 N.E.2d 33, 35, 176 Ill. Dec. 726.) A gift is not shown unless the donor has relinquished all present and future dominion and power over the subject matter of the gift. ( Moniuszko, 238 Ill. App. 3d at 529, 606 N.E.2d at 472; Hugh, 235 Ill. App. 3d at 271, 602 N.E.2d at 35.) The alleged donee has the burden of proving the existence of donative intent in the donor, and such proof must be clear and convincing in order to establish the gift. Moniuszko, 238 Ill. App. 3d at 529, 606 N.E.2d at 472-73.

Hall's claim for an accounting arises from her allegation that Eaton went into possession of the 300-acre farm after Eaton, Sr.'sdeath and reaped all the farm's profits thereafter. Hall's implicit argument is that she and Eaton received the 300-acre farm as a gift from their parents, and Eaton's "possession" of the farm constituted completion of the gift. Based on the testimony adduced at trial, however, we believe the Eatons' deed of the 300-acre farm to Hall and Eaton was not a completed gift. The Eatons did not relinquish all present and future dominion and power over the 300-acre farm when they deeded it in 1972, for they continued to work on the farm until their respective deaths. Moreover, Eaton testified he considered all income from both farms to belong to his parents until 1988 and denied ...

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