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In re Estate of Crawford

Court of Appeals of Illinois, First District, Fourth Division

December 26, 2019

In re ESTATE OF KEVIN CRAWFORD, Deceased (Wayne Crawford, Claimant-Appellant,
v.
Erwin Schmidt, Independent Administrator, Respondent-Appellee). In re ESTATE OF ANITA CRAWFORD, Deceased (Wayne Crawford, Claimant-Appellant,
v.
Erwin Schmidt, Independent Administrator, Respondent-Appellee).

          Appeal from the Circuit Court of Cook County. Nos. 17 P 1680 17 P 1681 The Honorable Mary Ellen Coghlan, Judge Presiding.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE

         ¶ 1 The instant consolidated appeals arise from the denial of a claim filed by claimant Wayne Crawford against the estates of decedents Kevin and Anita Crawford, claimant's son and daughter-in-law, after the two were killed in an automobile accident. Claimant filed a claim against each estate, seeking reimbursement of $223, 529.59 that he had paid to the decedents over 12 years, claiming that the payments were loans. Respondent Erwin Schmidt, the independent administrator of both estates and Anita Crawford's father, filed a motion for summary judgment with respect to each estate, claiming that the Dead-Man's Act (735 ILCS 5/8-201 (West 2016)) meant that claimant could not establish that he had made any payments to the decedents or that any payments were loans and not gifts. The probate court granted summary judgment in respondent's favor, denying claimant's claim, and claimant appeals. For the reasons set forth below, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 The record on appeal establishes that decedents Kevin and Anita Crawford were killed in an automobile accident on February 16, 2017; Kevin was 52 years old and Anita was 50 years old at the time of the accident. Decedents had three children, one of whom was also killed in the accident, and Anita's parents were named as guardians of the other two children, both minors.[1] Respondent is Anita's father, and claimant is Kevin's father.

         ¶ 4 On March 14, 2017, respondent filed petitions for letters of administration in both decedents' estates, and on April 10, 2017, the probate court appointed respondent as independent administrator for both estates. On the same day, the probate court entered an order finding decedents' children to be their only heirs.

¶ 5 On August 4, 2017, claimant filed a claim against each estate, alleging that he had a claim for $223, 529.55 against each estate jointly and severally. In support, claimant alleged that, beginning in 2005, decedents had financial burdens they were unable to satisfy and borrowed funds from claimant from time to time, which they agreed to repay; claimant alleged that these expenses typically included weekly groceries, utility bills, and payments on debts. Claimant further alleged that these expenses included leasing decedents a vehicle for their use, which he paid off after their deaths. Claimant alleged that he kept a contemporaneous log of the various amounts and dates on which decedents requested funds, but that "many incidents of borrowing were not entered in the log." Claimant alleged that he advanced decedents money from a home equity line of credit on his home, from his checking account, and by cash and credit card.

         ¶ 6 In support of his claim, claimant attached (1) a three-page handwritten contemporaneous log maintained by claimant, showing the date and amount of each disbursement; (2) a spreadsheet summarizing the transactions detailed in the log; (3) statements from PNC Bank, showing checks paid from the home equity line of credit; (4) statements from U.S. Bank, showing checks disbursed to decedents from claimant's checking account; (5) an unsigned, unnotarized "affidavit" from claimant, containing the same allegations as included in the claim; and (6) the lease documents for the vehicle leased by claimant.

         ¶ 7 On October 5, 2017, respondent filed an answer to claimant's claim, in which he stated that he "has no knowledge thereof sufficient to form a belief as to the truth of the allegations" concerning claimant's payment of money to decedents.

         ¶ 8 On December 8, 2017, respondent filed a petition to partially settle a wrongful-death cause of action against the person who caused decedents' death, which the probate court granted on December 23, 2017. Respondent also subsequently filed a petition to approve a structured settlement with decedents' insurance company on April 18, 2018, which he amended on June 15, 2018; the petition was granted on July 31, 2018.

         ¶ 9 On March 13, 2018, respondent filed a motion for summary judgment with respect to claimant's claim against each estate, claiming that the Dead-Man's Act precluded claimant from establishing that he made any loans to decedents. Respondent further argued that, to the extent that claimant could establish that he transferred any funds to decedents, such transfers were presumed to be gifts and claimant was unable to rebut the presumption because he could not establish that decedents understood the transfers to be loans. Respondent noted that claimant was relying on the testimony of (1) himself; (2) his daughter-in-law, Barbara; and (3) another son, Michael.[2] Respondent argued that claimant's testimony was clearly barred by the Dead-Man's Act, as was his handwritten log that purported to detail the transactions made. Respondent also argued that there was no exception that would permit the log to be admitted into evidence. Additionally, respondent claimed that even if they were not barred by the Dead-Man's Act, the testimony of Barbara and Michael added nothing to the proceedings, as neither had personal knowledge about decedents' intentions. Finally, respondent noted that some of the purported transfers were from accounts on which Kevin was a joint owner and claimed that, therefore, claimant was paying Kevin money that legally belonged to him, which could not be characterized as a loan.

         ¶ 10 In response, claimant argued that he was able to overcome the presumption that his transfers were gifts, based on the documentary evidence provided by claimant and on testimonial evidence. Claimant argued that his own testimony would demonstrate his intent, and that he would testify as to the foundation for the log that he prepared. Claimant also argued that Barbara's testimony would demonstrate that decedents received money from claimant and would support claimant's testimony as to the log and as to claimant's intent. Claimant claimed that his testimony was not precluded by the Dead-Man's Act because it fell under the foundational exception set forth in section 8-401 of the Code of Civil Procedure (Code) (735 ILCS 5/8-401 (West 2016)). Claimant also argued that permitting the estates to retain the funds would result in unjust enrichment to the estates.

         ¶ 11 Attached to claimant's response were two affidavits: his own affidavit and the affidavit of Barbara. In his affidavit, claimant averred that he lent various sums of money to the decedents between May 18, 2008, and February 2017, and that he intended that the monies be repaid in full and never intended that the funds would constitute gifts. Claimant further averred that, as part of his recordkeeping, he maintained a handwritten log on which he listed the amount of each advancement, the date of each advancement, a running total of amounts due and owing, and "companion entries that each advancement was borrowed." In her affidavit, Barbara averred that she "[had] personal knowledge of the transaction log kept by [claimant] and [had] personal knowledge of [decedents'] continual receipt of money from [claimant]." Barbara further averred that, "[d]uring the time in question, [she] had personal knowledge that [claimant's] intent was to be repaid by the decedents and that [claimant] did not intend the advancements to be donative."

         ¶ 12 On April 23, 2018, respondent filed a motion to strike claimant's affidavit, claiming that claimant's testimony in his affidavit as to what he did or what he thought was barred by the Dead-Man's Act. Respondent further claimed that claimant's attempt to authenticate a document in his affidavit was also barred by the Dead-Man's Act and by hearsay rules of evidence. On the same day, respondent also filed a motion to strike Barbara's affidavit, claiming that Barbara could not have personal knowledge of claimant's intent and further claiming that, even if she could, the affidavit did not set forth any facts with particularity but only set forth conclusions.

         ¶ 13 In response to respondent's motions to strike, claimant argued that the affidavits consisted of facts within the affiants' personal knowledge and repeated the arguments made in his response to the motion for summary judgment concerning the applicability of section 8-401 of the Code.

         ¶ 14 On September 6, 2018, the probate court granted respondent's motion to strike, finding that claimant's testimony concerning the alleged loans was barred by the Dead-Man's Act because "[t]estimony by an adverse party on his own behalf regarding events which took place in the presence of the deceased is inadmissible." The court also found that the written log and claimant's testimony about the log were similarly barred by the Dead-Man's Act and did not fall under the exception set forth by section 8-401 of the Code. The court found that, "[r]egardless of whether the Claimant's written log qualifies as a 'book account or any other record or document', as required by 735 ILCS 5/8-401, the Supreme Court of Illinois and the appellate courts of this state have consistently held that entries in a book of account for money loaned are not admissible, as that is not usually the subject matter of an account." With respect to Barbara's affidavit, the probate court found that her assertions regarding claimant's intent were conclusory and not based on evidentiary facts to which she would be capable of testifying. Accordingly, the probate court struck claimant's affidavit in its entirety and struck the paragraph of Barbara's affidavit concerning claimant's intent. The court also gave claimant leave to file an amended response to respondent's motion for summary judgment, which he did not do. Instead, on October 5, 2018, claimant filed a motion to reconsider the probate court's September 6, 2018, order striking claimant's affidavits, arguing that the court erred in its application of the law.

         ¶ 15 On November 26, 2018, the probate court denied claimant's motion to reconsider, finding unpersuasive claimant's argument that his log was not a book of account but was an "other record or document" permitted under section 8-401. The court found that the legislature intended "other record[s] or document[s]" to refer to records and documents similar to account books, meaning that claimant's log would not fall under that exception if it was truly different than a book of account, as claimant argued. The court also found that, apart from this evidence, claimant's remaining evidence failed to overcome the presumption that the transfers were gifts. Accordingly, the probate court granted respondent's motion for summary judgment and denied claimant's claim.

         ¶ 16 On December 21, 2018, claimant filed notices of appeal with respect to both estates, appealing the September 6, 2018, order striking his affidavits and the November 26, 2018, order granting summary judgment and ...


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