APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JEFFREY MALAK, JUDGE PRESIDING.
Released for Publication January 22, 1998.
Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Burke, JJ., concur.
The opinion of the court was delivered by: Wolfson
PRESIDING JUSTICE WOLFSON delivered the opinion of the court:
Shortly before his death, Max Goldstein told his wife Ann his brother Joseph would care for her financially when Max died. Ann Goldstein received only some furniture and a car after Max's death.
Ann, as independent administrator of Max's estate, now appeals the trial court's rejection of her amended three-count citation to recover assets from Joseph and Bessie Goldstein, her husband's siblings.
The relevant facts come from the amended citation to recover assets and from the trial testimony of Joseph, Bessie, and Ann Goldstein.
In the 1920s, Benjamin Goldstein opened a family business selling candy in Forest Park. After several years, Benjamin converted the candy store into a restaurant/gas station. Benjamin and his wife Flora had eight children: Jacob, Mathilda, Barney, Harry, Eva, Joseph, Bessie, and Max. All the Goldstein children, except Jacob, worked in the family business as they matured. Eventually, the Goldstein family also owned other properties including a commuter parking lot in Forest Park, a vacant lot in Maywood, and the family residence in River Forest.
The Goldstein family created what they termed a "family pot" for the businesses, the properties, and the family earnings. The expenses of the businesses and properties, as well as the expenses of individual family members, were paid from this fund. The family pot included bank accounts at several area banks.
In time, Jacob and Mathilda drifted from the family businesses. Barney married and continued to work in the restaurant. Harry worked in the gas station. Eva worked at a department store in Chicago, but remained involved in the family businesses. Bessie cared for the Goldstein parents, Benjamin and Flora. Joseph managed the restaurant. Max managed the gas station and the parking lot, and acted as treasurer of the family pot.
According to Bessie, the Goldstein family had an unwritten rule: before any sibling married, that sibling's share of the family pot would be transferred to the remaining unmarried siblings. Apparently, the existence of this unwritten rule was not shared with the sibling's bride or groom to be.
Shortly before Max's marriage in 1966, Max conveyed, without consideration, his joint tenancy interest in four family properties to his unmarried siblings--Joseph, Bessie, and Eva. Joseph, Bessie, and Eva remained joint tenants in the family properties. When Eva died, Joseph and Bessie assumed Eva's joint tenant interests. Ann never knew of these conveyances. Max continued working in the family businesses and controlling the expense payments from the family pot.
In 1993, when Max died, he left only a car and some furniture to Ann. Joseph and Bessie told Ann she would receive no more money. Ann filed her three-count citation as independent administrator of Max's estate to recover assets from Joseph and Bessie.
On July 2, 1996, the trial court dismissed counts I and II for failure to state a cause of action (section 2-615). On October 25, 1996, at the close of Ann's evidence at trial, the court dismissed count III for failure to present sufficient evidence for a prima facie case (section 2-1110). This appeal followed.
On appeal, Ann makes three arguments. First, Ann contends the trial court should not have dismissed count I because it stated a cause of action for invalidly defeating a marital right by a transfer of property immediately before marriage. Second, Ann contends the trial court should not have dismissed count II because it stated a cause of action for invalidly defeating a marital right by colorable or illusory transfer of property. Third, Ann contends the trial court should not have dismissed count III at trial because an oral partnership existed between Max and his siblings.
The trial court dismissed counts I and II for failure to state a cause of action under section 2-615(a), finding Ann had failed to allege sufficiently that Max's 1966 transfers of property invalidly defeated her marital rights. See 735 ILCS 5/2-615(a) (West 1992).
A motion to dismiss under this section "tests the legal sufficiency of a pleading and a court must accept all well-pleaded facts as true." Doe v. Calumet City, 161 Ill. 2d 374, 381, 641 N.E.2d 498, 503, 204 Ill. Dec. 274 (1994). On appeal, the standard of review for a section 2-615 dismissal is de novo. Hough v. Kalousek, 279 Ill. App. 3d 855, 665 N.E.2d 433, 216 Ill. Dec. 373 (1996).
In count I, Ann pleaded the following facts: Max and Ann became engaged on February 23, 1966. For some time before their engagement, Max and some combination of his siblings owned four parcels of land as joint tenants: a restaurant/gas station, a commuter parking lot, a vacant lot, and the family residence.
In 1959, Max, Joseph, Bessie, and Eva conveyed the vacant lot to a land trust, which sold this parcel in 1966. On March 3, 1966, pursuant to an informal family agreement, Max conveyed his interests in the restaurant/gas station, the commuter parking lot, and the family residence to his siblings Joseph, Bessie, and Eva as joint tenants. Max made these conveyances without consideration and without the knowledge or consent of his then-fiance Ann.
Eva predeceased Max, and her joint tenant interest in these parcels passed to Joseph and Bessie. Joseph and Bessie still own the residence. Joseph and Bessie eventually sold the restaurant/gas station and the commuter parking lot. They continue to receive proceeds from the sale of the restaurant/gas station, and they have invested the proceeds from the other sales.
Ann contends Max intended to defraud her of her martial rights despite his repeated assurances that his siblings would care for her after his death.
In count II, Ann pleaded the following additional facts: After the conveyances to his siblings, Max continued to own these parcels. Max still controlled the checking account for the family pot. Max paid the maintenance costs on these parcels, as well as the living expenses of his siblings, himself, and Ann. Max's social security income was deposited into this account. Ann ...