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01/29/98 ESTATE JOHN D. RENNICK v. JOHN D. RENNICK

January 29, 1998

IN RE ESTATE OF JOHN D. RENNICK, DECEASED (JUDY FURNISS, APPELLEE,
v.
JOHN D. RENNICK, JR., EX'R, ET AL. (JOHN D. RENNICK, APPELLANT)).



The Honorable Justice Nickels delivered the opinion of the court.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

In this appeal, we decide whether admissions contained in a discovery deposition are admissible against a deceased party's estate. Plaintiff, Judy Furniss, brought a professional negligence action against attorney John D. Rennick, alleging malpractice in the preparation of an estate plan. Following attorney Rennick's death, his estate was substituted as a party. Prior to trial, plaintiff sought a ruling on the admissibility against Rennick's estate of admissions Rennick made in a discovery deposition. The Peoria County circuit court ruled that under Supreme Court Rule 212 (134 Ill. 2d R. 212), Rennick's admissions could not be used at trial against his estate. The circuit court granted summary judgment in favor of the estate and plaintiff appealed. The appellate court reversed. 286 Ill. App. 3d 318, 676 N.E.2d 8, 221 Ill. Dec. 668. We granted the estate's petition for leave to appeal. 166 Ill. 2d R. 315. We affirm the appellate court's judgment.

BACKGROUND

The pleadings and attached exhibits reveal the following information. Paul Carroll and Edna Carroll were married in 1963. Paul had a daughter from a prior marriage, Judy Furniss, who is the plaintiff in the present action. Edna had two daughters from a prior marriage, Patricia Akins and Vivian Johnson.

In 1976, Paul and Edna sought legal assistance from attorney Rennick regarding the transfer of a deed for the family residence. Rennick executed a deed transferring title to the residence from Paul alone to Paul and Edna in joint tenancy with a right of survivorship.

In 1986, Paul and Edna sought legal assistance from attorney Rennick concerning the preparation of an estate plan. Rennick prepared one will each for Paul and Edna, both containing similar dispositions. Each will had a provision devising "my interest" in the family residence to Paul's daughter, Judy Furniss. In addition, each will provided that the residue of the estate would pass to the surviving spouse. In the event that the other spouse predeceased, each will provided that the residue of the estate would be divided equally between the three daughters: Judy Furniss, Patricia Akins, and Vivian Johnson.

In 1991, Paul died. Edna became the sole owner of the family residence as the surviving joint tenant. In addition, the residue of Paul's estate passed to Edna pursuant to Paul's will. After Paul's death, Edna allegedly placed the family residence in joint tenancy with her two daughters, Akins and Johnson. Edna also allegedly revoked the will prepared by Rennick and executed a new will. The new will purportedly leaves her entire estate to her two daughters, eliminating any bequest to Furniss.

Furniss filed a complaint for legal malpractice against Rennick. The complaint alleged that Furniss was an intended beneficiary of the attorney-client relationship between Rennick and her father. The complaint further alleged that Rennick was negligent in failing to inform her father that, should he die first, Edna would be free to revoke her will and defeat any distribution to Furniss. In addition, the complaint alleged that Rennick was negligent in failing to sever the joint tenancy in the family residence, so that Paul's interest could pass at his death to Furniss.

Rennick argued in a motion for summary judgment that he owed plaintiff no professional duty because plaintiff was not an intended beneficiary of the attorney-client relationship Rennick had with Paul Carroll. See generally Pelham v. Griesheimer, 92 Ill. 2d 13, 64 Ill. Dec. 544, 440 N.E.2d 96 (1982). The trial judge granted the motion in part. The trial judge ruled that it was Edna who was the intended primary beneficiary of the residue of Paul's estate and plaintiff was a mere contingent beneficiary as a matter of law. Therefore, the trial judge granted Rennick's motion for summary judgment on the claim regarding the residue. However, the trial judge denied summary judgment regarding the family residence. The trial judge ruled it was a jury question whether Paul intended to directly benefit plaintiff with the provision leaving her "my interest" in the family residence.

Plaintiff took Rennick's discovery deposition, inquiring into the circumstances surrounding the creation of the joint tenancy. Rennick died after his deposition and his estate was substituted as a party. Plaintiff then filed a motion seeking a ruling that admissions contained in Rennick's discovery deposition would be admissible against his estate at trial pursuant to Rule 212(a)(2). Plaintiff conceded she would be unable to meet her burden without the admissions contained in Rennick's deposition. Rennick's estate contended that the admissions could not be used at trial and filed a motion for summary judgment.

The circuit court ruled that admissions contained in Rennick's discovery deposition could not be used as evidence against his estate. The court acknowledged that there was a split of authority in the appellate court on the issue of whether admissions in a discovery deposition are admissible against a decedent's estate pursuant to Rule 212. However, the court determined it was constrained to follow the precedent of the Third District, which had rejected the admissibility of such statements in Riblet Products Corp. v. Starr National, 242 Ill. App. 3d 988, 183 Ill. Dec. 215, 611 N.E.2d 68 (1993). Thus, the trial court granted the estate's motion for summary judgment and plaintiff appealed.

The appellate court reversed. 286 Ill. App. 3d 318, 676 N.E.2d 8, 221 Ill. Dec. 668. The appellate court declined to follow Riblet, instead finding persuasive the reasoning in the Fourth District case of Overcast v. Bodart, 266 Ill. App. 3d 428, 203 Ill. Dec. 425, 639 N.E.2d 984 (1994).

In Overcast, plaintiffs in a personal injury action sought to introduce a party's admissions contained in a discovery deposition after the party's death. The Overcast court first noted that admissions other than those contained in a discovery deposition are admissible against a decedent's estate. As an example, the court cited to Patten v. Knowe, 354 Ill. 156, 161, 188 N.E. 173 (1933), which found admissible notations discovered in a decedent's papers. The Overcast court then examined the plain language of Rule 212(a)(2), which provides that a discovery deposition may be used "as an admission made by a party *** in the same manner and to the same extent as any other admission made by that person." 134 Ill. 2d R. 212(a)(2), quoted in Overcast, 266 Ill. App. 3d at 433. Applying this language, the ...


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