Court of Appeals of Illinois, First District, First Division
ESTATE OF ANIELA JEZEWSKI, a deceased person, Plaintiff-Appellant,
ELIZABETH JAWORSKI; KAZIEMERZ JAWORSKI a/k/a CASEY JAWORSKI; JP MORGAN CHASE, N.A.; and UNKNOWN OWNERS and NONRECORD CLAIMANTS, Defendants-Appellees.
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.
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.
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
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."
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
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
(West 2016)) (Act) and the only requirement under Illinois to
create a joint tenancy is compliance with section 1 of the
Act (id., §1), 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