{ "id": 1583499, "name": "In the Matter of the Estate of Albert H. Watson, Deceased", "name_abbreviation": "In re the Estate of Watson", "decision_date": "1970-02-05", "docket_number": "Gen. No. 68-99", "first_page": "83", "last_page": "90", "citations": [ { "type": "official", "cite": "120 Ill. App. 2d 83" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "109 NE 2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "768" } ], "opinion_index": 0 }, { "cite": "413 Ill 448", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313793 ], "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill/413/0448-01" ] }, { "cite": "214 NE2d 737", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "34 Ill2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2880142 ], "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0159-01" ] }, { "cite": "3 NE2d 132", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "286 Ill App 184", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5618888 ], "opinion_index": 0, "case_paths": [ "/ill-app/286/0184-01" ] }, { "cite": "197 Ill App 326", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5374023 ], "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-app/197/0326-01" ] }, { "cite": "203 NE2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill App2d 467", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5801149 ], "pin_cites": [ { "page": "473-474" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/53/0467-01" ] }, { "cite": "118 NE 2d 881", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "2 Ill App2d 109", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5122590 ], "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/2/0109-01" ] }, { "cite": "149 NE 2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "17 Ill App2d 307", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5182258 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-app-2d/17/0307-01" ] }, { "cite": "33 NE2d 877", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "376 Ill 354", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2540792 ], "weight": 3, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill/376/0354-01" ] }, { "cite": "51 NE 691", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "174 Ill 371", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5536826 ], "opinion_index": 0, "case_paths": [ "/ill/174/0371-01" ] }, { "cite": "69 NE2d 916", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "329 Ill App 537", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5654866 ], "year": 1946, "opinion_index": 0, "case_paths": [ "/ill-app/329/0537-01" ] }, { "cite": "174 NE2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "30 Ill App2d 243", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5790036 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-app-2d/30/0243-01" ] } ], "analysis": { "cardinality": 622, "char_count": 11448, "ocr_confidence": 0.582, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3769986203828872 }, "sha256": "3560c34decd367fc87a2692594e737d053970d794e6bb8906a6c320c72f3baf6", "simhash": "1:3b03f95a50830151", "word_count": 1939 }, "last_updated": "2023-07-14T20:28:55.675631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In the Matter of the Estate of Albert H. Watson, Deceased." ], "opinions": [ { "text": "EBERSPACHER, J.\nThis is an appeal from the trial court\u2019s decision which held in favor of petitioner-cross-respondent, John Anderson, Administrator of the Estate of Albert H. Watson, deceased (herein called \u201cpetitioner\u201d), and against the respondent-cross-petitioner, Martha Ransaw (herein called \u201crespondent\u201d).\nPetitioner filed a petition for citation to discover assets. The assets relevant to this appeal are three savings account passbooks. One was account number 2648 in the Herrin Security Bank of Herrin, Illinois, showing a balance of $3,195.57; the second was account number 26588 in the National Bank of Detroit showing a balance of $1,457.26; and the third was account number SS 171 in the National Bank of Detroit showing a balance of $8,488.83.\nIn respondent\u2019s reply to the petition, she admitted possession of the passbooks and cross-petitioned the court for a determination that all right, title and interest in said passbooks rested in her, alleging an inter vivas gift of the passbooks was made to her by decedent, prior to his death.\nAfter a hearing before the court without a jury it was ordered that the passbooks be turned over to the petitioner.\nFacts in this case show the decedent moved from Detroit, Michigan, to Colp, Illinois, in July, 1966, and resided there until his death some 5 or 6 weeks later. During this time respondent and her then 11-year-old son, Allen, resided with the decedent, as they had in Detroit at some time prior to their moving to Illinois.\nThe respondent was called as a witness by her attorney and testified over objection to events surrounding her acquisition of the passbooks. In essence, she testified that on August 5, 1966, she, the decedent, and her son Allen were in her bedroom in the home in Colp when decedent stated he was going to give her something. He handed her the key to a cedar chest located in the bedroom. She was unable to open it and her son Allen assisted. When the chest was opened the decedent took the passbooks from it and said they were hers. She took the passbooks, looked at them and replaced them in the chest. She then locked the chest and placed the key in her wallet. She retained the key in her possession from that point on, and upon the death of decedent took the passbooks to her attorney. Respondent\u2019s testimony was corroborated by that of Allen, who at the time of trial was 13.\nIn addition there was testimony of two neighbors of decedent, one of whom had known decedent for 50 years and had transacted business for him, as to conversations in which decedent had stated that it was his desire that his children receive nothing when he died.\nThe objection to respondent\u2019s testimony was taken under advisement by the court. The respondent subsequently moved the court to call respondent as its own witness under chapter 3, section 185, Ill Rev Stats, or in the alternative, to adopt respondent\u2019s testimony, previously given, as the testimony of a court witness. This motion was denied. Although it is not entirely clear from the record, the denial of respondent\u2019s motion indicates a failure to consider the testimony. Respondent cites this failure to consider as error under section 185 of the Probate Act (Ill Rev Stats 1961, c 3, \u00a7 185) and the case of In re Estate of Hill, 30 Ill App2d 243, 174 NE2d 233 (1961).\nThe pertinent provision of the Probate Act reads as follows:\n\u201cAt the hearing the Court may examine the respondent on oath whether or not the petitioner has proved the matters alleged in the petition, may hear the evidence offered by any party, may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires.\u201d\nThis section has been considered by the Illinois Courts in a number of decisions. The Appellate Court stated in Storr v. Storr, 329 Ill App 537, 69 NE2d 916 (1946), at page 918:\n\u201cThe legislature has provided therein a summary remedy for the recovery of property and the discovery of information. Its primary purpose is to discover assets of estates, and the court is authorized therein to make such orders as the case may require. Homer, Probate Practice, Chap 42, \u00a7 1075, Martin v. Martin, 174 Ill 371, 51 NE 691, 66 Am Stat Rep 290; Keshner v. Keshner, 376 Ill 354, 33 NE2d 877. The proceeding is purely statutory, and is neither at law nor in equity. It bears the equitable aspects of a bill of discovery, while at the same time providing for an optional jury as at law, on demand of the parties where questions arise concerning claims of adverse title or interest, as in the instant case. With reference to the nature of this proceeding, the Supreme Court of Illinois stated in Keshner v. Keshner, 376 Ill 354, 359, 33 NE2d 877: \u2018We have thus an anomalous proceeding and the peculiar nature of this kind of suit has a distinct bearing on the decision of this case.\u2019 \u201d\nThe Hill case was a citation proceeding against decedent\u2019s widow for an unendorsed stock certificate in the possession of the widow. The court there relied upon the case of Wagner v. Wagner, 17 Ill App2d 307, 149 NE 2d 770 (1958), which held at pages 772-773: \u201cWhether the respondent\u2019s testimony is necessary to a full and fair presentation of the facts in this case lies within the careful exercise of discretion by the trial court.\u201d The Hill court commented on the Wagner case in 174 NE2d at page 238 as follows: In Williams v. Wismuth, 2 Ill App2d 109, at 115, 118 NE 2d 881, the Court concluded from its review of Keshner v. Keshner, 376 Ill 354, 33 NE2d 877, \u201cthat regardless of who called the respondent to testify that it is the court\u2019s witness, and the witnesses\u2019 testimony should be considered with the other evidence in the case.\u201d\n\u201cObviously, the statement that the admission of respondent\u2019s testimony is discretionary with the Court, refers to whether such testimony \u2018is necessary to a full and fair presentation of the facts\u2019; and it would seem to follow that where no evidence whatsoever is admitted on behalf of respondent, the discretion is certainly not carefully exercised.\u201d\nA full and fair presentation of the facts in this action, originated to recover property alleged to be that of the estate, required respondent\u2019s testimony and the court should have adopted respondent\u2019s testimony previously given as the testimony of a court witness and should have given it consideration with the other evidence in the case. We are of the opinion that the fact that respondent had another witness (her 13-year-old son) who could and did testify to the gift, does not distinguish this case from In re Estate of Hill, supra. Here while the evidence of Allen was presented on behalf of respondent, the trial court did not consider it as being so clear and convincing as to establish the gift, and a respondent should not be handicapped by the fact that some one other than the alleged donor and donee were present at the time the gift was made. For this and numerous other reasons, we do not make the distinction between this case and In re Estate of Hill, supra, that was made by the Hill Court in the case of In re Estate of La Rue, 53 Ill App2d 467, 473-474, 203 NE2d 47.\nHere the material evidence concerning the alleged gift is uncontradicted by either direct evidence, inferences that could reasonably be drawn therefrom, or the circumstances surrounding the relationship between the decedent and the alleged donee.\nThat the decedent and respondent had resided in the same house in Detroit at some time prior to moving their possessions to Illinois to establish a home together in this state, and that they did establish a home together here is borne out by the record. It is only whether they intended to get married after establishing themselves in Illinois, a matter immaterial to the issue, that is controverted. Likewise, the testimony of two uninterested neighbors and old acquaintances to the effect that decedent had expressed the opinion that his children were only interested in him to get his property, and that he did not want them to get his money is uncontradicted, and borne out by uncontradicted circumstances. That decedent was motivated by the lack of attention from his children to give his property to respondent rather than to keep it for his children is likewise shown by the record; one of his sons testified that decedent lived alone in Detroit, while the other on his first cross-examination testified they had not lived together in Detroit, but on a subsequent cross-examination admitted that decedent and respondent lived together in Detroit for approximately 2 years \u201caround 1963 or 1964\u201d but \u201cI really didn\u2019t pay any attention.\u201d According to his own testimony, that son\u2019s only interest in decedent\u2019s moving with respondent to Illinois, was in whether decedent was going to marry respondent, which supports decedent\u2019s expressed sentiment that his children were only interested in him to get his property. That on the same day that the alleged delivery of the passbooks was made, the decedent gave respondent $400 in cash, which he had withdrawn that day, is likewise uncontroverted. Furthermore, there is no evidence of any act of respondent subsequent to the alleged making of the gift that is inconsistent with respondent\u2019s ownership of the savings accounts.\nAllen\u2019s testimony concerning their delivery and acceptance is positive and uncontradicted. Furthermore, the gift imposed no burden upon the donee, and was beneficial to her, and acceptance is presumed as a matter of law. Chicago Sav. Bank & Trust Co. v. Cohn, 197 Ill App 326, 329. Evidence of delivery of a savings account coupled with oral expression of intention to make the gift is sufficient to constitute a valid gift inter vivas and to pass title to the funds. In re Estate of Antkowski, 286 Ill App 184, 3 NE2d 132. Decedent\u2019s donative intent is shown by his own words, and is not contradicted. Where disclosure to inquiring hostile parties would only create a greater hostility, it is only natural that respondent would fail to disclose the gifts, except through her attorney. Respondent\u2019s failure to disclose was only natural under the circumstances here present, and was consistent with her ownership of the accounts. The testimony of Allen, an unimpeached witness, not contradicted by positive testimony or circumstances and not inherently false or improbable may not be disregarded, Urban v. Industrial Commission, 34 Ill2d 159, 163, 214 NE2d 737, 739; Dill v. Widman, 413 Ill 448, 454, 109 NE 2d 765, 768, even if the trial court saw fit to give little credence to the self-serving testimony of respondent, who was not impeached and whose testimony was neither contradicted nor inherently false or improbable in view of all the evidence presented. We are not here presented with a situation that called for the weighing of conflicting and inconsistent testimony. When all the testimony is considered, the evidence of a gift is clear and convincing.\nAs a result, the judgment of the trial court is reversed, and this cause is remanded for dismissal of the petition for citation and entry of a judgment on respondent\u2019s cross-petition.\nReversed and remanded.\nMORAN and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "EBERSPACHER, J." } ], "attorneys": [ "Harris, Holbrook & Lambert, of Marion, for appellant.", "Thomas W. Haney, of Herrin, and Kenneth Powless, of Marion, for appellee." ], "corrections": "", "head_matter": "In the Matter of the Estate of Albert H. Watson, Deceased.\nGen. No. 68-99.\nFifth District.\nFebruary 5, 1970.\nRehearing denied March 9, 1970.\nHarris, Holbrook & Lambert, of Marion, for appellant.\nThomas W. Haney, of Herrin, and Kenneth Powless, of Marion, for appellee." }, "file_name": "0083-01", "first_page_order": 89, "last_page_order": 96 }