Appeal from Circuit Court of Calhoun County No. 97P6 Honorable Scott H. Walden, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
In March 1996, Carl H. Wittmond died testate, leaving behind an estate valued at over $8.5 million. The trial court appointed Charles Burch, Wittmond's nephew, as executor of the estate. In November 1997, Jane Stewart, Wittmond's companion of 30 years, filed a petition asking the trial court to direct Burch to execute Wittmond's bequests to her. In February 1998, Burch filed a petition for citation for recovery of assets allegedly held by Stewart. In August 1999, the court denied Stewart's petition and granted Burch's petition in part. Later in August 1999, Stewart died. Her attorney filed a notice of appeal on her behalf, and in October 1999, this court allowed her estate to be substituted as a party. For simplicity's sake, we will refer to Stewart or her estate simply as Stewart.
Stewart appeals, arguing that (1) a certain parcel of real estate Wittmond bequeathed to her, known as the Smith farm, was part of the estate because Wittmond had never completed delivery of a deed purporting to convey the parcel into an inter vivos land trust; (2) the contents of a certain safe deposit box belonged to her and not Wittmond; and (3) Wittmond gave her certain other items of personal property prior to his death. Because we agree with Stewart's first two arguments, we reverse in part and remand.
Wittmond's 1984 will contained the following bequest to Stewart:
"I give, devise and bequeath unto my friend, JANE STEWART:
1. One Hundred Thousand Dollars ($100,000.00) and
2. My farm in Pike County, Illinois, known as the Smith Farm, *** together with all of the chattels thereon including the contents of the improvements thereon, and the landlord's share of all unharvested crops and benefits pertaining to said farm ***."
Wittmond made several smaller bequests and left the residue of his estate to Burch.
In April 1997, the trial court appointed Burch as executor of Wittmond's estate and ordered him to file an inventory within 60 days. In November 1997, Stewart filed a petition seeking, in relevant part, an order directing Burch to convey the Smith farm and associated chattels to her. Burch, who had never filed an inventory, filed a response asserting that the Smith farm was not estate property. In support, Burch attached a copy of an unrecorded warranty deed purporting to convey the Smith farm to the Carrollton Bank and Trust Company (Carrollton Bank) as trustee of the Carl H. Wittmond Land Trust (the land trust).
Stewart's petition was still pending when, in February 1998, Burch filed a petition for a citation for recovery of assets, seeking an order directing Stewart to turn over, in pertinent part, (1) assets from a safety deposit box leased to her at the Bank of Kampsville in Brussels, Illinois, and (2) a set of traveler's checks and a pocket watch. In March and April 1999, the trial court conducted a hearing on Stewart's and Burch's pending petitions. The evidence at that hearing showed the following.
In 1992, Wittmond created the land trust and transferred several pieces of property into the trust via quitclaim deed. Neither party offered the trust document into evidence at the 1999 hearings, but certain trust provisions were included on the 1992 deed, including the following:
"The interest of each beneficiary under the trust agreement *** is hereby declared to be personal property, and no beneficiary shall have any title or interest, legal or equitable, in or to the real estate as such ***."
Burch testified that he had a 12.5% beneficial interest in the trust and was entitled to all of the trust property upon Wittmond's death.
In January 1996, Burch, acting as Wittmond's attorney, prepared a warranty deed conveying the Smith farm into the land trust. Wittmond appeared in Burch's law office, executed the deed, and left it in Burch's possession with instructions that it not be recorded. According to Burch, the newspaper in Pike County reports all recorded land transactions, and Wittmond did not want this deed to be the topic of "public discussion." Burch subsequently placed the deed in a safety deposit box at a bank. He never provided the Carrollton bank with the deed but recorded it sometime after this dispute arose.
Wittmond was vice president of the Bank of Kampsville and a board member. He also owned the building that housed the bank's Brussels branch. Wittmond maintained several safe deposit boxes there in his own name. In 1986, Wittmond took a safe deposit box lease agreement home with him. Stewart signed the agreement and appointed Wittmond as her deputy, meaning that Wittmond could act as her agent and gain access to the box. Wittmond then returned the executed lease agreement to the bank.
From 1986 until the time of his death, Wittmond visited the bank on a regular basis and gained access to Stewart's safe deposit box and the various boxes in his own name. No witness remembered ever seeing Stewart personally gain access to the box while Wittmond was still alive. Shortly after Wittmond died, Stewart appeared at the bank and emptied the entire contents of the box, consisting of cash, into a paper bag. She later ...