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Estate of Jezewski v. Jaworski

Court of Appeals of Illinois, First District, First Division

September 30, 2019

ESTATE OF ANIELA JEZEWSKI, a deceased person, Plaintiff-Appellant,
v.
ELIZABETH JAWORSKI; KAZIEMERZ JAWORSKI a/k/a CASEY JAWORSKI; JP MORGAN CHASE, N.A.; and UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County, Chancery Division. No. 16 CH 0848 Honorable Thomas R. Allen, Judge Presiding.

          PRESIDING JUSTICE GRIFFIN delivered the judgment of the court, with opinion Justices Pierce and Walker concurred in the judgment and opinion.

          OPINION

          GRIFFIN PRESIDING JUSTICE

         ¶ 1 This is an appeal from an order entered by the circuit court of Cook County dismissing a partition action for lack of standing pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2016)) (section 2-619(a)(9)). At issue is the language of a deed and the trial court's findings that the deed was unambiguous and clearly expressed the intention of the parties to create a joint tenancy such that upon the death of grantee Aniela Jezewski, her interest in the subject property passed to the surviving joint tenants and her estate lacked standing to compel a partition. For the following reasons, we reverse the judgment of the circuit court of Cook County and remand the cause for further proceedings consistent with this opinion.

         ¶ 2 BACKGROUND

         ¶ 3 Aniela Jezewski (Aniela) and defendants Elizabeth and Kazmierez Jaworski (Jaworskis) purchased property from Claire D. Powalazcek located at 5839 North Central Avenue, Chicago, Illinois 60646. The purchase of the property was a family affair; Elizabeth is Aniela's daughter and she is married to Kazmierez.

         ¶ 4 In connection with the purchase, the seller executed a trustee's deed on June 9, 2002, conveying the property to Aniela and the Jaworskis as follows:

"An undivided one half interest to Aniela Jezewski and an additional undivided one half interest to Kazimierz Jaworski and Elizabeth Jaworski as Joint Tenants and not tenants in common."

         On August 9, 2009, Aniela passed away and a probate estate was opened on December 13, 2013.

         ¶ 5 On January 21, 2016, plaintiff, Estate of Aniela Jezewski, filed a petition to partition the property in the circuit court of Cook County against defendants Elizabeth, Kazmierez and J.P. Morgan Chase, N.A. (J.P. Morgan). The petition claimed that: (1) Aniela's interest in the property passed to her estate upon her death; (2) Kazmierez was "unwilling" to join in a voluntary partition of the property; (3) the Jaworskis were husband and wife; and (4) J.P. Morgan had an interest in the property by virtue of a mortgage lien recorded on August 8, 2013 (the Jaworskis executed a note in favor of J.P. Morgan that was secured by a mortgage on the property on July 26, 2013, after Aniela passed away).

         ¶ 6 On February 29, 2016, Kazmierez filed a section 2-619(a)(9) motion to dismiss the petition for lack of standing, arguing that the deed created a joint tenancy and Aniela's interest in the property passed to the Jaworskis upon her death through the right of survivorship. Plaintiff filed a response claiming that the deed created a tenancy in common between Aniela and the Jaworskis, and a joint tenancy between husband and wife. Attached to plaintiffs response was an affidavit executed by Elizabeth, wherein she stated that it was always "our" intention that Aniela's interest would pass to her estate upon her death.

         ¶ 7 On March 18, 2016, Elizabeth answered plaintiffs petition and admitted each allegation. J. P. Morgan filed an answer, but was later granted leave to withdraw it.

         ¶ 8 On September 22, 2016, the trial court held a hearing on the 2-619(a)(9) motion to dismiss, but continued the hearing after plaintiff raised a new argument, that a joint tenancy could not have been created because the deed granted unequal undivided interest in the property in violation of the common law "unity of interest" rule, which requires joint tenants to hold their undivided interests in property equally. The parties were allowed to file supplemental briefs addressing the issue.

         ¶ 9 In its supplemental brief, plaintiff maintained that the deed granted Aniela and the Jaworskis unequal interests in the property and a joint tenancy was not created. Kazmierez argued that the "unity of interest" requirement was "relaxed" by the Joint Tenancy Act (765 ILCS 1005/0.01et seq. (West 2016)) (Act) and the only requirement under Illinois to create a joint tenancy is compliance with section 1 of the Act (id., ยง1), which requires an instrument of conveyance to expressly declare that the premises shall pass "not in tenancy in common but in joint tenancy." Alternatively, Kazmierez argued that the grantees did share a "unity of interest" because the deed granted equal undivided ...


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