{ "id": 5198393, "name": "In the Matter of the Estate of Domenick Deskovic, Deceased. Domenico Zez and Matthew Zee, Appellees, v. Stanley Bandera and Maria Bandera, Anppellannts", "name_abbreviation": "Zez v. Bandera", "decision_date": "1959-03-23", "docket_number": "Gen. No. 47,477", "first_page": "209", "last_page": "214", "citations": [ { "type": "official", "cite": "21 Ill. App. 2d 209" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "12 Ill.App.2d 485", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5167973 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/12/0485-01" ] }, { "cite": "306 Ill. 473", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5780643 ], "opinion_index": 0, "case_paths": [ "/ill/306/0473-01" ] }, { "cite": "406 Ill. 93", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2635581 ], "opinion_index": 0, "case_paths": [ "/ill/406/0093-01" ] }, { "cite": "118 Ill. 365", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5381931 ], "opinion_index": 0, "case_paths": [ "/ill/118/0365-01" ] }, { "cite": "228 Ill. App. 569", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3069035 ], "opinion_index": 0, "case_paths": [ "/ill-app/228/0569-01" ] }, { "cite": "275 Ill. 381", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2409692 ], "opinion_index": 0, "case_paths": [ "/ill/275/0381-01" ] }, { "cite": "6 Ill.2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2707919 ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0224-01" ] }, { "cite": "6 Ill.2d 180", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708170 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/6/0180-01" ] }, { "cite": "322 Ill. 492", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5173389 ], "opinion_index": 0, "case_paths": [ "/ill/322/0492-01" ] }, { "cite": "296 N. Y. S. 925", "category": "reporters:state", "reporter": "N.Y.S.", "opinion_index": 0 }, { "cite": "404 Ill. 207", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308297 ], "opinion_index": 0, "case_paths": [ "/ill/404/0207-01" ] }, { "cite": "412 Ill. 597", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2663776 ], "opinion_index": 0, "case_paths": [ "/ill/412/0597-01" ] } ], "analysis": { "cardinality": 521, "char_count": 8366, "ocr_confidence": 0.519, "pagerank": { "raw": 2.931336241720102e-07, "percentile": 0.8473696729037098 }, "sha256": "f1f445ed3061cfe9b4e078aa5d75b0ae0cd8446d678c372c8d41dff93e7e38a1", "simhash": "1:b8f466487b96ae15", "word_count": 1421 }, "last_updated": "2023-07-14T19:36:22.933706+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MoCORMICK, P. J. and SCHWARTZ, J., concur." ], "parties": [ "In the Matter of the Estate of Domenick Deskovic, Deceased. Domenico Zez and Matthew Zee, Appellees, v. Stanley Bandera and Maria Bandera, Anppellannts." ], "opinions": [ { "text": "JUSTICE DEMPSEY\ndelivered the opinion of the court.\nA citation proceeding was filed in the Probate Court against Stanley Bandera and his wife, Maria, to recover the funds of a bank account which they claimed as survivors under a joint tenancy agreement with Stanley\u2019s uncle, the deceased, Domenick Deskovic.\nThe Probate Court, and the Circuit Court on appeal, found that the money was the sole property of Deskovic and ordered the respondents to deliver it to his estate.\nDeskovic had $12,895.35 on deposit in the South Chicago Savings Bank; on March 15, 1956 he transferred it to a new account at the same hank in his name and the Banderas\u2019. All subsequent deposits were his. The agreement of the same date, signed by the Banderas and to which Deskovic affixed his fingerprints, was in part as follows:\n\u201cAll money now or hereafter deposited in this account, and interest, shall be credited in our names; and subject to the by-laws, rules and regulations of the bank, may be paid from time to time to us or any of us, whether the others be living or not.\n\u201cAll such moneys and interest shall belong to us in joint tenancy, with the right of survivorship.\u201d\nThis written instrument complied with secs. 2 and 2(a) of the Joint Rights and Obligations Act (ch. 76, Ill. Rev. Stat. 1955) and created a joint tenancy in the bank account with the right of survivorship. Doubler v. Doubler, 412 Ill. 597; In re Estate of Wilson, 404 Ill. 207.\nThere is less controversy about the sufficiency of this document than there is over its execution. The statute provides that the instrument is to be signed by all persons at the time the account is opened or thereafter. Deskovic, 74 years of age, was ill in a hospital and was unable to sign his name; he impressed the fingers of his right hand on the agreement in lieu of his signature. If a person cannot write, or is unable to sign his name because of physical incapacity, he may make a mark which substitutes for his signature. Fingerprints, which are of greater authenticity, should be accorded no less weight. In re Romaniw\u2019s Will, 296 N. Y. S. 925.\nJoseph Dolac, an attorney whom Deskovic had summoned to the hospital March 14th, directed the imprinting. After learning that the deceased wanted to create a joint tenancy with the Banderas and that his sickness would prevent his signing, Dolac went to the bank; there he ascertained that fingerprints would be acceptable. He returned to the hospital on the 15th with the contract and had the fingerprints placed on it. The Banderas signed later that day at the bank. Although no objection was made to Dolac\u2019s testimony, the petitioners complain on appeal that it was incompetent because of the attorney-client privilege. Dolac\u2019s participation in the preparation 'and signing of the agreement was ministerial. No confidential communication or advice was involved. The Banderas, officers of the bank and some others knew of the transaction. The attorney was competent to testify to the circumstances surrounding the execution. Dickerson v. Dickerson, 322 Ill. 492.\nThe proof of this agreement made out a prima facie case for the respondents. In re Estate of Schneider, 6 Ill.2d 180; Scanlon v. Scanlon, 6 Ill.2d 224. In rebuttal the petitioners point to Deskovic\u2019s age and illness; they imply he neither read nor understood the agreement, that he relied upon the Banderas and his confidence was abused. Conversely, it is suggested that he knowingly and purposely had this account opened for his own convenience; that he ordered a lawyer to do this for him because the Banderas, who were recent immigrants, did not speak English and were uninformed about bank procedures.\nFrank Bandera, a brother of Stanley, testified that his uncle lived with him for thirteen months and that they had a joint account at the South Chicago bank during that time. In September 1955 the uncle went to live with another nephew, Matthew Zee, one of the petitioners, and thereupon opened a joint account with Zee at the same bank. From this testimony, standing alone, it could be inferred that it was Deskovic\u2019s practice, for his own convenience in paying bills and making deposits, to place his money in the names of those with whom he might be living. The correlative inference would be that he transferred his funds to the respondents for the same purpose because he made his home with them from January 1956 until his death in August of that year. This inference would be more persuasive were it not that Frank Bandera also testified that he heard his uncle tell Stanley at the hospital that \u201che was putting this account in joint tenancy so that he would have the money.\u201d Frank protested, saying: \u201cUncle Domenick, you never did anything right in your life, ... at least you could have mentioned to me and my wife that you were going to make a joint tenancy with my brother Stanley and his wife.\u201d His uncle replied: \u201cWell, if I want to give my money away that is my business.\u201d\nDeskovic made similar statements to Attorney Do-lac. After he said he wanted to create a joint tenancy with the Banderas, Dolac asked him: \u201cDo you mean that you want them to pay your bills out of this?\u201d He answered: \u201cNo, I want to make a joint tenancy so the money will be theirs as well as mine,\u201d and, \u201cI want to give them this money.\u201d Dolac persisted: \u201cAre you giving the money? The minute you make this joint tenancy \u2014 is that what you want?\u201d The reply was: \u201cThat\u2019s it.\u201d\nThese declarations of the deceased were direct and unequivocal. They completely overcome whatever inferences might be drawn from the previous accounts or from circumstantial evidence. There is nothing to show that Deskovic was not mentally alert or that any advantage was taken of him. He was familiar with joint tenancies and knew what he was doing.\nThe testimony of the Banderas, given as Court\u2019s witnesses in a citation hearing, corroborates the testimony of Attorney Dolac and Frank Bandera.\nThe witnesses testified only in the Probate Court. In the Circuit Court a stipulation, which was incorporated in an order of the court, provided:\n\u201c. . . the transcript of testimony heard ... in the Probate Court . . . containing the testimony of ... , Stanley Bandera, Frank Bandera and Maria Bandera, . . . and Joseph A. Dolac, ... is complete, accurate and he filed [sic] herein and considered by the Court as credible testimony as though each of said witnesses appeared in person and testified as appears in said report of proceedings; that objections to rulings as to the admissibility of testimony as contained in said report of proceedings be waived . . . the above be considered as all the evidence herein and that proofs are hereby declared closed. . . .\u201d\nInasmuch as objections to the admissibility of the evidence were withdrawn, the only question involved is the interpretation of the evidence. Upon an appeal from the Probate Court, a trial de novo is had in the Circuit Court. (Ill. Rev. Stat. 1957, ch. 3, para. 487.) The Circuit Court becomes the trial court and the rulings and finding of the Probate Court are not considered. Barnes v. Earle, 275 Ill. 381; Noel v. Noel, 228 Ill. App. 569. The Circuit Court had no opportunity to observe the demeanor or to evaluate the credibility of the witnesses. Its decision was based on a transcript. We are in the identical position. For this reason we are not limited by the rule that the trial court\u2019s findings of fact should not be changed unless they are against the manifest weight of the evidence. I. L. P., vol. 2, secs. 786-787; Baker v. Rockabrand, 118 Ill. 365; Koepke v. Schumacher, 406 Ill. 93.\nWe disagree with the conclusion reached by the trial court. In our opinion the appellants established the deceased\u2019s donative intent by clear and convincing evidence. They met the burden the law placed upon them. In re Estate of Schneider, supra; Bolton v. Bolton, 306 Ill. 473; In Matter of Estate of Ida Sneider, 12 Ill.App.2d 485. The judgment is reversed.\nJudgment reversed.\nMoCORMICK, P. J. and SCHWARTZ, J., concur.", "type": "majority", "author": "JUSTICE DEMPSEY" } ], "attorneys": [ "John P. Coghlan and John E. Toomey, of Chicago, for appellants.", "Samuel Shamberg, of Chicago, for appellee." ], "corrections": "", "head_matter": "In the Matter of the Estate of Domenick Deskovic, Deceased. Domenico Zez and Matthew Zee, Appellees, v. Stanley Bandera and Maria Bandera, Anppellannts.\nGen. No. 47,477.\nFirst District, First Division.\nMarch 23, 1959.\nReleased for publication May 13, 1959.\nJohn P. Coghlan and John E. Toomey, of Chicago, for appellants.\nSamuel Shamberg, of Chicago, for appellee." }, "file_name": "0209-01", "first_page_order": 219, "last_page_order": 224 }