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In re Estate of Cuneo

October 25, 2002


Appeal from the Circuit Court of Du Page County. No. 97-P-712 Honorable Ronald B. Mehling, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley


Petitioners, Thomas J. Mowinski and Candida Cuneo Mowinski, appeal the order of the circuit court of Du Page County, finding that a Palm Desert, California, condominium was an asset of the estate of decedent, Ann L. Cuneo, and that two quitclaim deeds purportedly transferring decedent's interest in the property to petitioners were not valid. We affirm.

Respondents Ronald Stout and Breda Stout maintain that the property is an asset of decedent's estate. Decedent's will provides that respondents are to inherit the property. Petitioners assert that decedent gave them the condominium in a conveyance occurring about one year before decedent's death. During the probate of decedent's estate, on March 1, 2000, petitioners filed this action to confirm the ademption of the condominium. Following the denial of petitioners' motion for summary judgment, this matter proceeded to a bench trial.

At the bench trial, petitioners presented evidence concerning the making of the quitclaim deeds. Petitioners presented testimony that two deeds were executed, one on April 19, 1996 (the Friday deed), and one on April 20, 1996 (the Saturday deed). Petitioners' witnesses testified that on April 19, 1996, decedent signed a quitclaim deed conveying the property to decedent and Candida Mowinski jointly. Decedent's signature was witnessed by the Mowinskis' neighbors, Diane Shroyer and John Somers. The Friday deed was notarized by another neighbor, Vivian Somers. Testimony further indicated that the Friday deed had been prepared by Thomas Mowinski from a blank form he kept in his home office. After the Friday deed had been completed, it was given to Thomas Mowinski for safekeeping.

Petitioners presented further testimony that on April 20, 1996, decedent was dissatisfied with the Friday conveyance and demanded that another quitclaim deed be executed to transfer the property to Candida and Thomas Mowinski jointly. This time, decedent's signature was witnessed by Diane Shroyer and Thomas Mowinski (John Somers had entered the house but remained in the Mowinskis' garage, examining some golf clubs). The Saturday deed was also notarized by Vivian Somers. Once again the Saturday deed was given to Thomas Mowinski for safekeeping.

Candida Mowinski testified that on May 7, 1996, she recorded the Friday deed in California. At this time, the Saturday deed had not yet been recorded. Candida Mowinski testified that she recorded the Friday deed even though it did not represent the wishes of her mother, namely, that title to the condominium be in both Candida and Thomas Mowinski's names.

Thomas Mowinski testified that on August 29, 1996, he recorded the Saturday deed. He testified that the deed had been executed without being dated and that, when he went to record the deed, he was instructed to use that day's date even though the deed had been executed on April 20, 1996.

Respondents presented testimony that substantially impeached petitioners' evidence. Vivian Somers admitted that the stamp with which she notarized the Saturday deed did not exist on April 20, 1996. Elaborating, Somers explained that her notarial commission expired in July 1996 and that she filed her renewal application in June 1996. Somers conceded that she would not have had the stamp with which she notarized the Saturday deed before June or July 1996. Somers nevertheless maintained that she notarized the Saturday deed on April 20, 1996.

Respondents also presented the testimony of Robyn Flannigan, the manager and record keeper for the Notary Public Association of Illinois (NPAI). She testified that her company files the paperwork necessary to complete an application or renewal for a notary public commission. In addition, her company makes the stamps given to their applicants. She testified that she recognized the notarial stamp used on the Saturday deed owing to a unique feature of the software used to manufacture stamps for the NPAI. Flannigan also testified that she received Somers's application for renewal in June 1996 and that the stamp would not have been made until after the State had renewed the commission, sometime in late June or July 1996.

Respondents also presented testimony from Darlene Hennessy, a "questioned documents" examiner. Hennessy examined the "Ann L. Cuneo" signatures on the two deeds and compared them against three known signatures of decedent from her will. Hennessy concluded that decedent could not be identified as the writer of the signatures on either of the deeds.

Following the presentation of evidence, the trial court determined that respondents had met their burden of proof by clear and convincing evidence and denied petitioners' complaint for ademption. The trial court held that neither of the deeds was valid and that the California condominium was an asset of decedent's estate to be distributed according to decedent's will. Petitioners timely appeal.

Petitioners raise a number of issues on appeal. Petitioners appear to argue that the trial court's decision was against the manifest weight of the evidence because the two quitclaim deeds complied with the formal requisites of California law and respondents failed to carry their burden of demonstrating their invalidity by clear and convincing evidence.

As an initial matter, the parties agree upon the choice of law to apply to the facts of this case. "The title to and disposition of real estate either by deed or will is governed by the law of the State where the land is situated." In re Estate of Barrie, 331 Ill. App. 443, 447 (1947). Further, in conflicts of law cases, procedural matters are governed by the law of the forum and substantive matters are governed by the law in which the property is located. Boersma v. Amoco Oil Co., 276 Ill. App. 3d 638, 645 (1995). Accordingly, California law will apply to the substantive issues in this case; Illinois law will apply to procedural matters.

Petitioners initially argue that the two deeds were properly authenticated under California law. By "authentication," petitioners appear to mean that they introduced sufficient evidence at trial to prove that the certified copies of the quitclaim deeds were accurate and correct copies of those documents. (Petitioners did not produce the original deeds, even though the copies produced at trial included instructions that, after recording, the originals be returned to petitioners.) Petitioners' issue with respect to the authentication of the deeds, however, misses the point of respondents' challenge to the documents. While respondents did suggest that petitioners' failure to produce the originals gave rise to a presumption against petitioners, respondents' main point was that their evidence tended to demonstrate that the deeds were not validly executed. Petitioners' contentions regarding the authentication of the documents under California law do not shed any light on this issue (or ...

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