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  "name": "In re ESTATE OF SIDNEY ALPERT, Deceased.-(MICHAEL H. ROTMAN, Adm'r of the Estate of Sidney Alpert, Appellant, v. LILA JONES, Appellee.)",
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    "parties": [
      "In re ESTATE OF SIDNEY ALPERT, Deceased.\u2014(MICHAEL H. ROTMAN, Adm\u2019r of the Estate of Sidney Alpert, Appellant, v. LILA JONES, Appellee.)"
    ],
    "opinions": [
      {
        "text": "JUSTICE McGLOON\ndelivered the opinion of the court:\nThis is a dispute over the distribution of the estate of Sidney Alpert, who died testate on January 9, 1979. At the time of his death, decedent owned a home in Skokie, Illinois in joint tenancy with his wife, Nettie Alpert. The joint tenancy property was held in a land trust at the American National Bank & Trust Company of Chicago (American National Bank).\nTwo months before he died, decedent borrowed $50,000 from the First National Bank of Lincolnwood (Bank of Lincolnwood). As security for the loan, decedent and his wife assigned to Bank of Lincolnwood their beneficial interest in the land trust.\nDecedent\u2019s will was admitted to probate on March 6, 1979. The will provided as follows:\n\u201cSubject to any contrary provisions, if any, of any trust agreements executed by me during my lifetime, I direct my executor to pay out of the residue of my probate estate the following obligations:\ne # #\nIII. All indebtedness owed by me at the time of my death except such indebtedness as then is secured by a mortgage of real estate.\u201d A codicil was admitted to probate on the same day as the will. The codicil devised a parcel of real estate to Mrs. Lila Jones. Specifically, the codicil provided:\n\u201cFirst I give, devise and bequeath all my interest in and to the building located at 814-22 West 76th Street, Chicago, Illinois and I direct my Executor after all my debts and taxes are paid and funeral bill, to see to it that Mrs. Lila Jones gets all the interest that I have in said building.\u201d\nThe probate assets in decedent\u2019s estate, which included the real estate devised to Lila Jones and some outstanding accounts receivable are estimated to be worth approximately $30,000. The claims and debts of the estate are estimated to be approximately $90,000. As a result, the probate assets are insufficient to satisfy the claims and debts of the estate.\nA claim was allowed in favor of Bank of Lincolnwood for $50,000, the full amount of the loan to decedent and his wife. Lila Jones, the devisee of the real estate which is the subject matter of the codicil, argued in the trial court that the assets of the land trust should be inventoried as probate assets to satisfy Bank of Lincolnwood\u2019s claim. The trial court ordered that Bank of Lincolnwood\u2019s claim should be satisfied solely and specifically against the property held in land trust at American National Bank. The administrator of the estate appeals. We reverse.\nThe issues on appeal are: (1) whether property held in a land trust and in joint tenancy becomes a probate asset upon the death of the co-tenant; and (2) whether a collateral assignment of the beneficial interest in a land trust creates a mortgage on the real estate.\nFirst, we must decide whether the joint tenancy property held in land trust at American National Bank became a probate asset upon the death of Sidney Alpert. The legal characterization of the joint tenancy property as a probate or nonprobate asset is of great practical significance. If we determine that the property is a nonprobate asset, the only probate asset against which Bank of Lincolnwood could satisfy its $50,000 claim is the building devised to Lila Jones, valued at approximately $30,000.\nOne of the essential characteristics of a joint tenancy is the right of survivorship, that is, the right of the survivor to take the whole of the estate upon the death of the cotenant. (Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 451, 150 N.E.2d 144.) The surviving tenant takes joint tenancy property under the instrument by which the tenancy was created and not under the laws of intestate succession. (13 Ill. 2d 443, 451; Klajbor v. Klajbor (1950), 406 Ill. 513, 518, 94 N.E.2d 502.) As a result, the property does not become part of the probate estate. 4A Powell, Law of Real Property, ch. 51, \u201cOwnership in Joint Tenancy,\u201d par. 619.1 (1981).\nIn the case at bar, Sidney Alpert owned his family home in joint tenancy with his wife Nettie. Upon his death, title vested in Nettie by operation of law. Clearly, Mrs. Alpert\u2019s interest in the residence, by virtue of her right of survivorship, did not become part of the probate estate.\nSecond, we must consider Lila Jones\u2019 contention that the assignment of beneficial interest in the land trust to Bank of Lincolnwood created an equitable real estate mortgage. Jones maintains that since the transaction gave Bank of Lincolnwood a real property interest, the trial court order directing Bank of Lincolnwood\u2019s claim to be satisfied against that property was correct.\nA trustee of an Illinois land trust has both legal and equitable title. (Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50, 236 N.E.2d 425; Chicago Federal Savings & Loan Association v. Cacciatore (1961), 33 Ill. App. 2d 131, 138, 178 N.E.2d 888, aff'd (1962), 25 Ill. 2d 535, 185 N.E.2d 670.) A beneficiary\u2019s interest in an Illinois land trust is personal property and not real property. (Horney v. Hayes (1957), 11 Ill. 2d 178, 183, 142 N.E.2d 94; Shefner v. University National Bank (1976), 40 Ill. App. 3d 978, 980, 353 N.E.2d 126; Levine v. Pascal (1968), 94 Ill. App. 2d 43, 50, 236 N.E.2d 425; but cf. In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259 (In McGaughey, the assignee of the beneficial interest in the land trust was also the trustee of that trust).) It follows that an assignee of a beneficial interest in an Illinois land trust acquires only an interest in personal property. The transaction does not give the assignee a direct interest in the realty res of the trust. See 11 Ill. 2d 178; 40 Ill. App. 3d 978; 94 Ill. App. 2d 43.\nThe Alperts\u2019 assignment of their beneficial interest in the land trust to Bank of Lincolnwood for purposes of securing a mortgage gave Bank of Lincolnwood a personal property interest only. We therefore reject Lila Jones\u2019 argument that the assignment to Bank of Lincolnwood created an equitable real estate mortgage and reverse the trial court\u2019s order directing Bank of Lincolnwood\u2019s claim to be satisfied solely and specifically against the joint tenancy property held in land trust at American National Bank. We note that even if we were to accept Jones\u2019 arguments that the Alpert home was a probate asset and that the transaction created an equitable mortgage, a reversal of the trial court\u2019s order would still be appropriate, for decedent\u2019s will expressly excludes the payment of any real estate mortgage from the probate assets of his estate.\nFor the foregoing reasons, we reverse the order of the circuit court of Cook County.\nOrder reversed.\nO\u2019CONNOR, J., concurs; CAMPBELL, P. J., dissents.",
        "type": "majority",
        "author": "JUSTICE McGLOON"
      }
    ],
    "attorneys": [
      "Glenn C. Fowlkes, of Evins, Fowlkes, Boyd & Gant, of Chicago, for appellant.",
      "Eric E. Graham, of Chicago (William H. Laws, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re ESTATE OF SIDNEY ALPERT, Deceased.\u2014(MICHAEL H. ROTMAN, Adm\u2019r of the Estate of Sidney Alpert, Appellant, v. LILA JONES, Appellee.)\nFirst District (1st Division)\nNo. 80-2489\nOpinion filed December 14, 1981.\nGlenn C. Fowlkes, of Evins, Fowlkes, Boyd & Gant, of Chicago, for appellant.\nEric E. Graham, of Chicago (William H. Laws, of counsel), for appellee."
  },
  "file_name": "0600-01",
  "first_page_order": 622,
  "last_page_order": 625
}