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February 3, 1995


Appeal from Circuit Court of Champaign County. No. 92P26. Honorable John G. Townsend, Judge Presiding.

Rehearing Denied March 3, 1995. Released for Publication March 3, 1995. As Corrected March 31, 1995.

Honorable John T. McCULLOUGH, J., Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Concurring

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Respondent Barbara Loomis appeals from an order entered in the probate estate of John Rohrer (decedent) ordering her to convey to the estate all her interest in property situated in New York for failure of delivery and acceptance of a deed in joint tenancy executed by decedent and his wife. Petitioners cross-appeal from the court's finding that decedent was not incompetent at the time of execution of the deed to the New York property.

Decedent and his wife, Bertha, are the parents of respondent and grandparents of petitioners. Until November 1988 they lived on their farm property in Chatham, New York. In May 1984, decedent executed a will naming respondent as executor and providing for disposition of his estate between respondent and his six grandchildren, expressly excluding any bequest to his son, George, the father of petitioners. On December 18, 1986, decedent and Bertha executed a deed prepared by their attorney conveying the New York property to themselves and respondent as joint tenants with right of survivorship. The deed was recorded on December 22, 1986, and marked for return to decedent's attorney, Keith Flint. At some time thereafter it came into respondent's possession, although it is disputed as to whether this occurred prior to the death of the grantors.

In November 1988, respondent brought her parents to live with her in Champaign, Illinois, because health problems prevented them from managing on their own. Both parents died in Champaign in 1989--Bertha in February, and decedent in June at age 91. Petitioners filed a petition for citation to recover property for the estate, challenging only decedent's competency at the time of execution of the 1986 deed.

Hearings on the petition were held in September 1992 and July 1993 and witnesses were called or deposed by respondent for the sole purpose of giving evidence on the issue of decedent's competency. At those hearings respondent admitted that for approximately one year before her father's death he had been suffering from Alzheimer's disease and she had been unaware at the time her parents executed the deed they had added her name in joint tenancy. She stated that she had paid nothing for the property in question, paid no taxes or expenses and collected no rents until after their deaths, and could not recall when her mother told her about her name being added to the deed, but it was not immediately.

Following the July 1993 hearing, petitioners moved to amend the pleadings to conform to proof of a theory that the deed failed for lack of delivery and acceptance within the lifetime of the grantors. Respondent objected on the basis that she was deprived of a right to offer rebuttal evidence to this theory. On August 22, 1993, the trial court ruled that the evidence failed to--show decedent was incompetent at the time of execution of the deed and noted that the amended pleadings raised a new and different theory of a lack of delivery and acceptance of the deed. The court allowed the amendment, but permitted respondent to reopen the case with evidence to refute the new theory.

At a hearing on the amended petition held November 8, 1993, petitioners' counsel read into the record respondent's January 1993 deposition testimony wherein she had been asked whether she had discussed the deed with attorney Flint. She had answered: "No, I did not, I didn't know I was on it." Based on this statement and respondent's acknowledgement that she shared none of the expenses or benefits of the property prior to her parents' death, petitioners argued there had been no delivery of the deed.

Respondent then testified that she had received a birthday card from her mother in March 1987 containing a New York newspaper clipping dated January 30, 1987, showing the grantors' conveyance of the New York property to themselves and respondent. She also stated that she had visited her parents over spring break in March 1987 and her mother had handed her an envelope containing the deed. Based on counsel's hearsay objections, the court indicated it would accept the testimony for the limited purpose of showing respondent's state of mind as to acceptance of the deed and would reserve ruling on whether the testimony was admissible as evidence of delivery of the deed.

The trial court first determined that New York law applied in determining whether the deed was effective as a present conveyance by the grantors to themselves and respondent. It noted that a presumption of delivery arose based upon the recording of the deed, but that this presumption was dissipated by the existence of facts inconsistent with a present conveyance, such as the grantors' retention of exclusive possession and control of the property, payment of all expenses, and receipt of all benefits until after the death of Bertha. The court found that absent the presumption, there was no credible evidence of delivery because respondent's testimony regarding her receipt and knowledge of the deed was directly contradicted by her deposition testimony that she had no knowledge of being on the deed. The court concluded there was no competent evidence of either delivery or acceptance of the deed, both of which were required under New York law, and that the deed was ineffective to convey the property to the grantors and respondent as joint tenants. The court ordered respondent to execute a quitclaim deed conveying all her interest in the property to decedent's estate.

Respondent first contends the court erred in allowing petitioners' motion to amend the pleadings to raise the question of delivery of the deed. She argues that although section 2-616 (c) of the Code of Civil Procedure (735 ILCS 5/2-616(c) (West 1992)) allows a pleading to be amended at any time, before or after judgment, to conform the pleadings to the proofs, a court should not permit amendment if it alters the nature of proof required to defend or if the other party would be prejudiced or surprised. ( In re C.C. (1991), 224 Ill. App. 3d 207, 216, 586 N.E.2d 498, 504, 166 Ill. Dec. 540.) Respondent asserts that although she was afforded a hearing to present evidence on the issue of delivery of the deed, other out-of-State witnesses with relevant testimony found it difficult to attend subsequent hearings.

The record does not indicate that respondent raised the issue of the unavailability of witnesses with relevant evidence to the trial court and she apparently acquiesced without objection to petitioners' offer to allow a reopening to put forth evidence which might refute the new theory. Therefore, this issue is deemed waived for purposes of review. See Western ...

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