Appeal from the Circuit Court for the 21st Judicial Circuit, Kankakee County, Illinois No. 94-P-21 Honorable Sheldon Regan Judge, Presiding
The opinion of the court was delivered by: Justice Breslin
Plaintiff Duane J. O'Connor, as special administrator of the estate of Harry C. Emhouser (Harry), filed a complaint against defendants St. John United Church of Christ, Otho Kalo Congregationalist Church (collectively churches), and Marlo Jean Popp Brais (Brais) seeking a construction of the will to include certain farmland in the estate. The court ruled that the farmland was part of the estate, and Brais appealed. We affirm and hold that the grantor of a deed in escrow must intend to part with all dominion and control over the deed in order to effectuate delivery and, thus, secure the deed's validity.
On June 19, 1994, Brais filed a petition for the probate of Harry's will and for the issuance of testamentary letters. The will devised to the churches the farmland which is the subject of this dispute. Brais filed an inventory in which she included the farmland as part of the estate. Five months later, for reasons that will be discussed, Brais filed an amended inventory whereby she requested to exclude the farmland. The churches objected to the filing of the amended inventory.
O'Connor was appointed as special administrator. He filed a complaint seeking the inclusion of the farmland in the estate. O'Connor was subsequently replaced by plaintiff Adrienne Albrecht as the special administrator.
The following is a recitation of the parties' joint stipulation of facts. Harry and his wife, Rose Emhouser, jointly owned the farmland that is the subject of this appeal. On April 27, 1987, the Emhousers executed what was termed an "escrow" agreement and a quit claim deed which they delivered to Courthouse Title Service (Courthouse). The escrow agreement provided that the Emhousers would execute a quit claim deed for the farm, to be held by Courthouse in favor of Brais, upon the following conditions:
1. The deed would not be recorded by Courthouse.
2. The Emhousers reserved the right to revoke the escrow agreement prior to the death of the survivor of the parties.
3. Courthouse would not deliver the deed to Brais until both the Emhousers were deceased.
Rose died in 1988, one year after the execution of the agreement. On July 2, 1990, Harry executed a will in which he bequeathed the farmland to the churches. At no time was any deed executed conveying the property to Courthouse as trustee. But a quit-claim deed conveying the property to Brais was delivered to her after Harry's death.
The trial court ruled that the farmland was part of the estate. No order of the court appears in the record. The court docket provides that Harry's will was "an effective revocation of the trust *** though the will had not become effective until the date of death of the testator. Therefore, the real property in question is an assett [sic] of the estate." Brais appealed the court's order.
On appeal, Brais argues that the agreement between the Emhousers and Courthouse was actually a valid and binding trust. She argues that Harry's will did not effectively revoke the trust because, pursuant to Merchants National Bank v. Weinold, 22 Ill. App. 2d 219, 160 N.E.2d 174 (1959), and In re Estate of Anderson, 69 Ill. App. 2d 352, 217 N.E.2d 444 (1966), if a trust does not specifically state that it is revocable by will, it is only revocable by an inter vivos act. In this case, the agreement did not provide for its revocation by will; rather, the agreement specifically provided that it could be ...