APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JEFFREY A. MALAK, JUDGE PRESIDING.
As Modified on Denial of Rehearing November 21, 1995. Released for Publication November 28, 1995. As Corrected November 29, 1995. Petition for Leave to Appeal Denied April 3, 1996.
Presiding Justice Scariano delivered the opinion of the court: Hartman and DiVITO, JJ., concur.
The opinion of the court was delivered by: Scariano
MODIFIED ON DENIAL OF REHEARING
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
The sole issue in this case is whether the equitable doctrine of election applies to validate the devise of property which had been held by the testator and one of his children in joint tenancy and which the testator therefor had no right to devise. For reasons that follow, we hold that the equitable doctrine of election does not apply to a devise of such property. We thus affirm the judgment of the circuit court.
The facts underlying this case are not in dispute. On February 19, 1991, Robert E. Williamson, Sr. (Robert), died. His last will and testament, dated August 20, 1986, was read aloud by his attorney on February 23, 1991, in the presence of, among others, Robert's six children, one of whom was Joseph Williamson (Joseph). The will provided in part as follows:
"I give to those of my children, Quennetta Williamson Miller, Theodore B. Williamson, Robert E. Williamson, Jr., Clarence B. Williamson, and Claretta P. Williamson Comeaux, who survive me by thirty (30) days, as tenants in common and not joint tenants, my two-thirds (2/3) interest in the real estate located at 3536 through 3546 South Indiana Avenue, Chicago, Illinois, and any insurance policies thereon, free of any mortgage indebtedness, which I direct, shall be paid from the residue of my estate."
The real estate located at 3536 to 3546 South Indiana was originally held in joint tenancy by Robert; his wife, Annie V. Williamson, who died on January 8, 1983; and Joseph.
The will also provided that the residue of the estate be divided equally as tenants in common among his six children, including Joseph, who survived him by at least 30 days.
Claretta P. Williamson Comeaux was named executor of Robert's estate (the Estate), and the will was admitted to probate on March 13, 1991. On September 12, 1991, she tendered a check to Joseph for $18,552.69 as a partial distribution of the residue of the Estate, and he cashed the check shortly thereafter. On June 7, 1992, Joseph died and his son Joseph H. Williamson was named the independent administrator of the estate (Joseph's estate).
On February 23, 1993, the Estate filed a petition for a citation to recover assets, seeking an order from the circuit court requiring Joseph's estate to transfer two-thirds interest in the South Indiana Avenue property pursuant to the equitable doctrine of election. Joseph's estate responded that it was not required to produce the asset because a deceased joint tenant has no legal interest capable of devise or subject to intestate succession, and therefore the property could not be considered a part of the Estate. Thereafter, the Estate filed a motion for summary judgment and Joseph's estate moved to dismiss the petition. *fn1
At the hearing on the motions, the Estate argued that because Joseph never contested the will and because he accepted property devised to him under the residuary clause, the equitable doctrine of election prevented his estate from asserting that the property was incapable of devise. Although the Estate acknowledged that no Illinois court had ruled that the equitable doctrine of election applied to attempted dispositions of property held in joint tenancy, it argued that courts of several other states had found that it did. Joseph's estate argued, as it had in its response to the petition filed by the Estate, that no election occurred because the property was incapable of devise by Robert, and further that any contrary conclusion would be inconsistent with the statutory right of survivorship in and to property held in joint tenancy. The court ruled that because the property held in joint tenancy became Joseph's by operation of law at the time of Robert's death, Robert held no interest in the real estate which was capable of devise. The court therefore denied the Estate's motion for summary judgment and granted Joseph's estate's motion, dismissing the petition.
On appeal, the Estate contends that the circuit court erred in denying its motion for summary judgment and in granting the motion to dismiss, asserting that the equitable doctrine of election is well established in Illinois, and that no reason ...