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Greeling v. Abendroth

July 23, 2004

PATRICIA GREELING, PLAINTIFF-APPELLEE,
v.
HARRY JOE ABENDROTH, EXECUTOR OF THE ESTATE OF MARGARET COOPER, DECEASED; AND HARRY JOE ABENDROTH, DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Macoupin County. No. 02L4. Honorable Thomas P. Carmody, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

PUBLISHED

Plaintiff, Patricia Greeling, and Margaret Cooper were joint tenants of a certificate of deposit purchased by Everette Cooper, Margaret's husband and plaintiff's father by a previous marriage. Soon after Everette died, Margaret and her son by a previous marriage, Harry Joe Abendroth, went to the bank and, although the certificate of deposit was still in plaintiff's possession, persuaded the bank to cash it. With the proceeds, Margaret purchased a new certificate of deposit payable to herself, Abendroth, and Debbie Brashears. Margaret has since passed away.

When the bank refused to pay her, plaintiff sued Abendroth individually and in his capacity as the executor of Margaret's estate, seeking to recover under section 4 of the Joint Tenancy Act (Act) (765 ILCS 1005/4 (West 2000)). (We will refer to Abendroth in his two capacities as "defendants." In his individual capacity, we will call him "Abendroth.") At the conclusion of a trial, the trial court entered judgment against defendants and in plaintiff's favor in the amount of half the principal and accrued interest of the new certificate of deposit.

- 1 -Defendants appeal on the following grounds: (1) by its terms, the certificate of deposit purchased by Everette allowed Margaret to cash it in and keep the proceeds; (2) because section 4 applies only to actions between cotenants, Abendroth cannot incur liability under that section; and (3) Brashears, not named as a defendant in this case, was a necessary party.

We hold that while plaintiff had possession of the certificate of deposit, Margaret could not rightfully cash it. The trial court could have reasonably found that by inducing the bank to pay Margaret without the surrender of the certificate according to its terms, Abendroth committed the common-law tort of intentional interference with a contractual relationship. The court did not award plaintiff any interest in the new certificate of deposit; rather, it awarded her a money judgment payable out of no particular source, and therefore Brashears is not a necessary party. We affirm.

I. BACKGROUND

Everette bought the certificate of deposit on January 26, 2002, for $99,449.26 and made it payable to "Everette Cooper or Margaret Cooper or Patricia Greeling." It matured on April 4, 2002. On its face, the certificate expressly incorporated "the [a]additional [t]erms and [c]onditions stated on the reverse," including the following:

"JOINT CERTIFICATES: When two or more persons are named as depositors on this [c]ertificate with the conjunction 'or' appearing between names, then such [c]ertificate shall be payable to any of the survivor or survivors of them[,] and payment may be made[,] upon surrender of this [c]ertificate[,] to any of them during the lifetime of all, or to any survivor or survivors after the death of one or more of them. When the conjunction 'and' appears between names, the [c]ertificate shall be payable only upon the signatures of all depositors named."

About three weeks before his death, Everette delivered the certificate of deposit to plaintiff in the presence of Margaret. After Everette's death on January 17, 2003, plaintiff still had the certificate in her possession.

On January 26, 2003, Margaret and Abendroth went to the bank and said they wanted to cash the certificate of deposit, which at that time had a face amount of $100,420.93. The bank officer asked where the certificate of deposit was. Abendroth testified:

"We said that it was still being held by [plaintiff], and it was supposed to be in the [lock]box, and the certificate that was returned to us, as we said before, we asked for this three times, and my mother asked for the [lockbox] returned three times. When the [lockbox] was returned, the [certificate of deposit] was not enclosed. And that, I would think, is my mother's property."

The bank allowed Margaret to cash the certificate of deposit on condition that she sign an indemnity bond, which stated "the said certificate of deposit is supposed to be lost" and in which she promised to "deliver up said certificate of deposit[,] when found, to said bank." Margaret signed the bond, and the bank paid her the proceeds, $99,449.26, which she used to buy a new certificate of deposit payable to "Margaret Cooper or Harry Abendorth [sic] or Debbie Brashears." A "Debit" of the account, signed by a bank officer, reads: "CD [(certificate of deposit)] [l]ost."

The $99,449.26 was calculated as follows: the face amount of the old certificate of deposit, $100,420.93, plus the accrued interest, ...


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