{ "id": 3597931, "name": "GLADYS ZORN, Ex'r of the Estate of Frank F. Zorn, Deceased, Plaintiff-Appellee, v. CLAIR ZORN et al., Defendants-Appellants", "name_abbreviation": "Zorn v. Zorn", "decision_date": "1984-06-05", "docket_number": "No. 4\u201483\u20140537", "first_page": "258", "last_page": "266", "citations": [ { "type": "official", "cite": "126 Ill. App. 3d 258" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "424 N.E.2d 1279", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8500217 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0964-01" ] }, { "cite": "129 N.E. 814", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "296 Ill. 314", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5056987 ], "opinion_index": 0, "case_paths": [ "/ill/296/0314-01" ] }, { "cite": "81 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "211" } ], "opinion_index": 0 }, { "cite": "400 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307117 ], "weight": 2, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill/400/0490-01" ] }, { "cite": "501 S.W.2d 481", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10130768 ], "opinion_index": 0, "case_paths": [ "/sw2d/501/0481-01" ] }, { "cite": "227 Mo. App. 653", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 8729364 ], "weight": 2, "pin_cites": [ { "page": "657" }, { "page": "732" } ], "opinion_index": 0, "case_paths": [ "/mo-app/227/0653-01" ] }, { "cite": "149 N.E.2d 309", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "128 Ind. App. 660", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1363403 ], "pin_cites": [ { "page": "666" } ], "opinion_index": 0, "case_paths": [ "/ind-app/128/0660-01" ] }, { "cite": "457 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "119 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3628018 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/119/0790-01" ] }, { "cite": "81 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "400 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5307117 ], "opinion_index": 1, "case_paths": [ "/ill/400/0490-01" ] } ], "analysis": { "cardinality": 892, "char_count": 19233, "ocr_confidence": 0.753, "pagerank": { "raw": 1.934648703961146e-07, "percentile": 0.7346551864606778 }, "sha256": "def8129d8f70b6f66654dc3205dc1c7859020d13fd28d0c41d915c0cbceb82a4", "simhash": "1:a212cc89460d8a99", "word_count": 3197 }, "last_updated": "2023-07-14T22:48:42.345915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GLADYS ZORN, Ex\u2019r of the Estate of Frank F. Zorn, Deceased, Plaintiff-Appellee, v. CLAIR ZORN et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE WEBBER\ndelivered the opinion of the court:\nDefendants appeal from an order of the circuit court of Livingston County which denied their motion to vacate judgment and for a new trial. They argue on appeal that the circuit court committed error by excluding certain evidence and by admitting allegedly improper evidence.\nFrank Zorn, prior to his death, had been the owner of farm property in Livingston County, Illinois. On August 13, 1980, a purported deed to this property was recorded in Livingston County whereby a remainder interest in the property was conveyed to his three children, defendants herein. The decedent retained a life estate in the property. Soon afterwards in 1980 the decedent and his wife (the plaintiff-executor herein) filed a complaint in the circuit court of Livingston County asking the court to set aside the deed because it had been procured through undue influence or fraud. Frank Zorn died before the cause had come to trial. As a result, the plaintiff filed her second amended complaint on October 28, 1982, in her capacity as executor of her late husband\u2019s estate. She sought to have the deed declared invalid and to have the farm property included in the decedent\u2019s estate. She claims that the deed is invalid because it was procured by undue influence, or because the decedent was mentally incompetent at the time of the conveyance.\nBefore trial, the plaintiff claimed protection under section 8 \u2014 201 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 8\u2014\n201), commonly known as the Dead Man\u2019s Act. She moved, in limine, to exclude possible testimony by the defendants regarding conversations and transactions with the decedent. The plaintiff also moved in limine to exclude all evidence of her right to renounce the will and thereby receive one-third of the estate property. The court granted these motions over the defendants\u2019 objections.\nThe trial began on March 17, 1983, before an advisory jury in the chancery division of the circuit court of Livingston County. Two expert medical witnesses testified on behalf of the plaintiff that, due to chronic organic brain disease, the decedent lacked sufficient mental capacity to understand the nature and effect of his actions at the time of the execution of the deed. The plaintiff also introduced testimony to the effect that the gift tax upon the conveyance of a valid deed would be much greater than the inheritance tax levied if the deeded property should pass by the will. Two of the defendants, Clair Zorn and Eunice Wilson, were also called by the plaintiff to testify as adverse witnesses.\nAfter all of the evidence had been presented, the two issues involved were submitted to an advisory jury in the form of special interrogatories. In answering these interrogatories the jury found that the decedent lacked sufficient mental capacity to make the deed in question, and that before and at the time of the execution of the deed, the decedent was under the undue influence of two of the defendants. The circuit court then accepted these findings and entered a decree against the defendants. The defendants timely moved to vacate the judgment, and the court denied the motion on July 13, 1983. A notice of appeal was filed on August 1, 1983.\nOn appeal, the defendants claim that the plaintiff waived the protection of the Dead Man\u2019s Act when she called the defendant Eunice Wilson as an adverse witness and questioned her about an event which took place in the presence of the decedent. At that point, the defendants urge, Wilson should have been allowed to fully explain the event with further testimony, including any conversations with the decedent in that regard. They argue that the trial court\u2019s refusal to allow such testimony constitutes reversible error. We agree.\nAt trial, the plaintiff called the defendant, Eunice Wilson, to testify as an adverse witness pursuant to section 2 \u2014 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1102). In answer to the questions put to her, Wilson testified that she and her brother (also a defendant herein) had the deed in question drawn in Pontiac, Illinois. On August 12, 1980, they drove to their father\u2019s and stepmother\u2019s residence in Wabash, Indiana, for the purpose of having their father sign the deed. Wilson testified that while they were in Wabash she and her brother drove the decedent to a bank. She admitted that they did not pay the decedent for the farm property. She testified that when they left Wabash the deed had been signed. After this testimony defendants\u2019 counsel approached the bench and argued that the plaintiff had waived the protection of the Dead Man\u2019s Act and requested that the defendants be allowed to testify about certain conversations they had with the decedent several months prior to the trip in question. He argued that these conversations would show that the decedent had requested the defendants to act as they had, thus rebutting the inferences caused by Wilson\u2019s limited testimony. The trial court refused to allow such testimony.\nSection 8 \u2014 201 of the Code of Civil Procedure (Dead Man\u2019s Act) states in pertinent part:\n\u201cIn the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in the following instances:\n(a) If any person testifies on behalf of the representative to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, any adverse party or interested person, if otherwise competent, may testify concerning the same conversation or event.\u201d\nIn our opinion the core issue is the meaning of \u201cevent\u201d in the statute cited above. We note first that the present statute reiterates that of 1973 (Ill. Rev. Stat. 1973, ch. 51, par. 2(1)) when a significant change was made by the legislature. The prior statute (Ill. Rev. Stat. 1971, ch. 51, par. 2) referred throughout to \u201cthe same conversation or transaction.\u201d We assume that the legislature intended some change and it therefore becomes a question as to the meanings of \u201ctransaction\u201d versus \u201cevent.\u201d\nWe find the following pertinent:\n\u201cOne commentator has suggested that because the common meaning of the word \u2018event\u2019 is narrower than that of the word \u2018transaction,\u2019 the 1973 amendment narrowed the waiver provision. Despite the linguistic appeal of this argument, recent changes in the rules of evidence have rarely resulted in less evidence being admissible. It seems unlikely, therefore, that the Illinois legislature intended this result. \u2018Conversation or event\u2019 should be flexibly applied to each case in such a way that each side has a fair opportunity for rebuttal when the opponent, directly or indirectly, introduces evidence regarding a witness\u2019 impression of an event or chain of events.\u201d Mason & Weisbard, The Pitfalls of Will Contest Litigation, 16 J. Mar. L. Rev. 499, 510 (1983).\nEtymologically, \u201ctransaction\u201d appears to be narrower than \u201cevent.\u201d \u201cTransaction\u201d is ofttimes linked with its twin, \u201coccurrence,\u201d and indicates a specific happening or episode. \u201cEvent\u201d is frequently regarded as rising from an antecedent state of things. (Webster\u2019s Dictionary of Synonyms 582 (1st ed. 1951).) Thus, Jefferson\u2019s immortal lines would have been robbed of that quality if he had commenced, \u201cWhen in the course of human transactions ***.\u201d\nOther courts in our sister States of Indiana and Missouri have had occasion to consider the word \u201cevent.\u201d\n\u201cAn \u2018event\u2019 is that which follows from the cause (Gore\u2019s Case, 9 Coke 80a, 81b, 77 Reprint 853) and it refers not to futurity but has reference to something that has taken place which, however, is not an event until something happens. It becomes an event when it does happen.\u201d McGinnis v. American Foundry Co. (1958), 128 Ind. App. 660, 666, 149 N.E.2d 309, 312.\nIn construing its Workers\u2019 Compensation statute, the Missouri court said:\n\u201cThe word accident as used in the statute is given the character of an event which is not limited to any single incident or \u2022 circumstance. The word event is more comprehensive in meaning, and in this connection is synonymous with the word occurrence. It includes all of the steps or connected incidents from the first cause to the final results. It is not limited in meaning to the initial cause, but may include both cause and effect.\u201d (Rinehart v. F.M. Stamper Co. (1932), 227 Mo. App. 653, 657, 55 S.W.2d 729, 732.)\nSee also Snuggs v. Steel Haulers, Inc. (Mo. 1973), 501 S.W.2d 481.\nWe are aware that these courts were dealing with a workers\u2019 compensation statute, but we find the rationale persuasive. There appears to be no valid reason why the word \u201cevent\u201d should have a specialized meaning in those statutes. We believe that in the instant case \u201cevent\u201d includes all of the connected incidents and conversations leading up to the signing of the deed and that it was error for the trial court to deny them admission.\nAlthough it was decided under a prior statute, the case of Perkins v. Brown (1948), 400 Ill. 490, 81 N.E.2d 207, bears many striking simlarities to the case at bar. There the defendant wished to explain his testimony as an adverse witness by testifying to conversations which he had had with the decedent in the months prior to her death. The supreme court said:\n\u201cThe justice of this rule is too apparent to require discussion. It would be palpably unjust if a litigant were permitted to call an adverse party and examine him as to one fact or phase of a transaction in his favor and then invoke the bar of the statute when the party examined sought to testify further with regard to the same transaction for the purpose of explaining his former testimony or correcting an erroneous impression left thereby. Section 60 of the Civil Practice Act, (Ill. Rev. Stat. 1947, chap. 110, par. 184,) giving the litigant the right to call the adverse party and examine him as if under cross-examination, in no way abrogates the rule that where a party calls a witness and examines him as to a particular part of a transaction, the other party may call out the whole of the transaction bearing upon or tending to explain or qualify the particular part to which the examination of the other party was directed. Appellants having called Brown to testify and elicited from him the statement that he had received a deed for the property from the deceased and that he did not pay her for it or buy it from her, it was entirely proper to permit him to explain the entire transaction with the deceased, including the conversations had by her with him concerning the conveyance of the property, as such conversations were a part of the transaction inquired about by appellants.\u201d 400 Ill. 490 497, 81 N.E.2d 207, 211.\nWilson\u2019s further testimony, and perhaps that of the other defendants, could have rebutted evidence of undue influence and could have served as evidence of the decedent\u2019s competency at the time of making the deed. Its exclusion constitutes reversible error.\nWe appreciate the concerns voiced by Justice Trapp in his dissent, and we will not be understood as writing a blank check for the admission of all possible testimony. The matter must be handled on a case-by-case basis, each one dependent on its own facts, and, of course, the basic principle of relevancy will act as a restraint upon unbridled application of the rule. We hold that on the facts of this case, it was error to exclude the evidence.\nOn appeal, defendants also claim that Clair Zorn and Eunice Wilson were competent to testify about conversations and events in the presence of the decedent concerning the deed because such testimony would have been against their pecuniary interest. They argue that these defendants would have benefited monetarily if the property involved here had passed by will.\nUnder the will, Clair Zorn and Eunice Wilson each received one-half of the property, subject to certain payments to Roger Zorn and his children. Under the deed, each of the defendants would receive one-third of the property. However, since no evidence was received as to the amount of the payments owed to Roger Zorn and his children, there is no basis upon which the defendants\u2019 claim can be substantiated. Moreover, this argument was not even raised in the court below. The defendants\u2019 argument is without merit.\nThe defendants next claim that they should have been allowed to present evidence of plaintiff\u2019s personal interest in the litigation. In granting the plaintiff\u2019s motion in limine, the circuit court stated that evidence that plaintiff might possibly renounce the will would not be relevant to the two issues before the advisory jury, namely, the issues of undue influence and the incompetence of the decedent. Defendants objected to this ruling on the basis that such evidence would be relevant to show plaintiff\u2019s interest in the litigation generally.\nWhile evidence of personal interest is relevant to impeach a witness\u2019 credibility, it does not follow that the defendants should be allowed to present such evidence as part of their case in chief. This is what the trial court wished to prevent by its ruling before trial, and to that extent the ruling was correct. The plaintiff, in fact, was not called to testify until rebuttal evidence was being presented. At that point, the defendants did not attempt to impeach her testimony or to question the extent of the court\u2019s ruling. The plaintiff\u2019s testimony was brief and dealt only with uncontested matters such as the date of her marriage, her husband\u2019s age at the time of his death, and a description of their home. Her credibility in this regard is unquestioned. Therefore, any possible error in the trial court\u2019s ruling could not have prejudiced defendants and was harmless.\nFinally, defendants contend that they were prejudiced at trial by the admission of erroneous and irrelevant evidence. They claim that the plaintiff\u2019s evidence of possible gift tax consequences as compared to the estate tax consequences for the property involved was improperly admitted. It is apparent from the record that the trial court agreed with defendants. Before the closing arguments were heard, the court, on its own motion, instructed the jury that testimony concerning the possible tax consequences was stricken and should be disregarded. As a general rule, striking out erroneously admitted evidence cures the error in all but extreme cases. (McKenna v. Chicago City Ry. Co. (1921), 296 Ill. 314, 129 N.E. 814.) This would not appear to be an extreme case.\nAt any rate, the defendants have waived any error in this regard since they failed to object to this testimony at trial. (Graves v. North Shore Gas Co. (1981), 98 Ill. App. 3d 964, 424 N.E.2d 1279.) Furthermore, we would anticipate that this type of testimony will not recur when this case is retried.\nFor all of the foregoing reasons, the judgment of the circuit court of Livingston County is reversed and the cause is remanded for a new trial in accordance with the views expressed in this opinion.\nReversed and remanded.\nMILLS, P.J., concurs.", "type": "majority", "author": "JUSTICE WEBBER" }, { "text": "JUSTICE TRAPP,\ndissenting:\nThe parties and this court agree that the admissibility of the testimony in issue is to be determined under the language of section 8\u2014 201 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 8 \u2014 201.) The opinion determines the issue by carrying forward an interpretation of section 2 of the former act in regard to evidence and depositions (Ill. Rev. Stat. 1971, ch. 51, par. 2), frequently termed the Dead Man\u2019s Act.\nA notable distinction or change is that the words \u201csame transaction\u201d of the former Evidence Act are replaced by the words \u201csame event\u201d in the Code. Actually, the change of terms was made in an amendment of the Evidence Act effective in 1973. As a matter of language, the respective terms do not have identity or' comparability in scope or use.\nIn Webster\u2019s Third International Dictionary \u201can event\u201d is described as an occurrence \u201coccupying a restricted portion of *** space or time\u201d or a \u201chappening represented by a point.\u201d It is thus restricted to a particular happening at a particular time. This particularity is emphasized by requiring that the testimony relate to \u201cthe same conversation or event.\u201d A first synonym of the word \u201csame\u201d is \u201cidentical.\u201d\nThe same dictionary described the word \u201ctransaction\u201d in broader terms of prosecuting negotiations or carrying on business. It is not necessarily limited as to specific time or place. Thus, it has been said that a series of \u201cevents\u201d might constitute a \u201ctransaction.\u201d (Comment, Illinois\u2019 Amended Dead Man\u2019s Act; A Partial Reform, 1973 U. Ill. L.F. 700, 711.) Since the amendment of 1973', which substituted the words \u201csame event\u201d for the words \u201csame transaction,\u201d legal writers have debated the desired merits and scope of the Dead Man\u2019s Act. In the recent enactment of section 8 \u2014 201 of the Code of Civil Procedure, effective July 1, 1982, the legislature made considerable change of language which generally simplified the statement of the statute. It did not, however, abandon the narrow connotation of the words \u201csame event\u201d and return to the broader interpretation of \u201csame transaction\u201d found in the cited Perkins v. Brown (1948), 400 Ill. 490, 81 N.E.2d 207.\nThe majority opinion finds that a defendant was called as an adverse party \u201cabout an event\u201d and concludes that that \u201c \u2018event\u2019 includes all of the connected incidents and conversations leading up the signing of the deed ***,\u201d so that such party may thereafter testify upon the entirety without particularity concerning that which was asked. The construction of the companion words \u201csame conversation\u201d in the statute suggests an apparent anomaly. If the personal representative calls a witness to testify to the \u201csame conversation,\u201d does this also permit testimony as to the preceding and subsequent \u201cconversations\u201d without any regard to the span of time, identity, or place in the use of the word \u201csame\u201d?\nThere has been long debate concerning the problems inherent in the conflicting evidentiary goals, where an original party has died or is incompetent. Neither the legal profession nor the legislature have found a better resolution than to limit the area of testimony to the identity of conversation or event to which any person testifies in behalf of the representative. These views expressed in dissent are deemed consistent with the opinion in Manning v. Mock (1983), 119 Ill. App. 3d 788, 457 N.E.2d 447.\nI would affirm the trial court.", "type": "dissent", "author": "JUSTICE TRAPP," } ], "attorneys": [ "Donna J. Cunningham, of Chicago, for appellants.", "Richard E. Quinn and Karen J. Steele, both of McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria, for appellee." ], "corrections": "", "head_matter": "GLADYS ZORN, Ex\u2019r of the Estate of Frank F. Zorn, Deceased, Plaintiff-Appellee, v. CLAIR ZORN et al., Defendants-Appellants.\nFourth District\nNo. 4\u201483\u20140537\nOpinion filed June 5, 1984.\nRehearing denied July 5, 1984.\nTRAPP, J., dissenting.\nDonna J. Cunningham, of Chicago, for appellants.\nRichard E. Quinn and Karen J. Steele, both of McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria, for appellee." }, "file_name": "0258-01", "first_page_order": 280, "last_page_order": 288 }