{ "id": 3535704, "name": "In re ESTATE OF ALICE A. KIRCHWEHM, Deceased (Enoch Navicky, Petitioner-Appellant, v. Doris O'Donnell, Respondent-Appellee)", "name_abbreviation": "Navicky v. O'Donnell", "decision_date": "1986-06-30", "docket_number": "No. 85\u20143160", "first_page": "280", "last_page": "285", "citations": [ { "type": "official", "cite": "145 Ill. App. 3d 280" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "451 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 940", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556882 ], "pin_cites": [ { "page": "942" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0940-01" ] }, { "cite": "93 Ill. 2d 543", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "442 N.E.2d 571", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3000537 ], "year": 1983, "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0374-01" ] }, { "cite": "85 Ill. 2d 577", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "424 N.E.2d 911", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499892 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/98/0786-01" ] }, { "cite": "31 N.E.2d 786", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "375 Ill. 357", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2535979 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill/375/0357-01" ] }, { "cite": "307 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 6", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509428 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0006-01" ] }, { "cite": "441 N.E.2d 158", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 934", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448394 ], "year": 1979, "pin_cites": [ { "page": "938-40" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0934-01" ] }, { "cite": "274 N.E.2d 147", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5313307 ], "weight": 2, "pin_cites": [ { "page": "421" }, { "page": "421-22" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0419-01" ] }, { "cite": "303 N.E.2d 473", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2682701 ], "year": 1971, "pin_cites": [ { "page": "810-11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0809-01" ] }, { "cite": "313 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2691863 ], "year": 1973, "pin_cites": [ { "page": "1028" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/1027-01" ] }, { "cite": "382 N.E.2d 585", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3326714 ], "year": 1974, "pin_cites": [ { "page": "315-16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0314-01" ] }, { "cite": "393 N.E.2d 1128", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1978, "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 690", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3266984 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0690-01" ] }, { "cite": "202 N.E.2d 470", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1979, "opinion_index": 0 }, { "cite": "31 Ill. 2d 587", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833193 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "591" }, { "page": "591" }, { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0587-01" ] } ], "analysis": { "cardinality": 690, "char_count": 14017, "ocr_confidence": 0.736, "pagerank": { "raw": 9.961721986493819e-08, "percentile": 0.5374409859416515 }, "sha256": "0c6fe0f42f4a86871875f9fded2726d7d6b7d014983d560e645569b5945e4d45", "simhash": "1:79db0ed27d614e2d", "word_count": 2318 }, "last_updated": "2023-07-14T17:15:42.287354+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF ALICE A. KIRCHWEHM, Deceased (Enoch Navicky, Petitioner-Appellant, v. Doris O\u2019Donnell, Respondent-Appellee)." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nCitation petitioner Enoch Navicky, residuary legatee, appeals the dismissal of a citation to recover proceeds of certain joint tenancy certificates of deposit (CDs), a savings account and a checking account from Doris O\u2019Donnell (O\u2019Donnell), the surviving joint tenant and executor and once guardian of the decedent, Alice Kirchwehm (Kirchwehm). We are asked to review whether: (1) joint tenancies established between decedent and O\u2019Donnell were proved to have been mere joint tenancies of convenience rather than true joint tenancies; and (2) O\u2019Donnell breached her fiduciary duties and thereby became unjustly enriched.\nMelvin Kirchwehm, decedent\u2019s husband, who died in November 1970, had managed the family money during the marriage. After his death, Ted Boisumeau managed decedent\u2019s financial affairs until his death in 1974 or 1975. From that point on, O\u2019Donnell, Kirchwehm\u2019s close friend, niece, and godchild, managed her affairs, including paying bills and writing checks. Until 1979, the bank accounts and CDs were in Kirchwehm\u2019s name only. There were two First National Bank CDs of $100,000 each; a Lakeview Trust and Savings Bank savings account of $50,000; and a checking account of $8,000. These accounts were set up as joint tenancies with Kirchwehm and O\u2019Donnell as joint tenants during 1979 and 1980.\nAt some point during 1979, Kirchwehm\u2019s attorney, John Schmidt, filed a petition to have a guardian appointed for Alice as a mentally disabled person, and O\u2019Donnell was so appointed; the record does not indicate when. An inventory of the guardianship estate was filed on December 17, 1980, from which it appears that O\u2019Donnell was appointed guardian after all the joint tenancies were established. Nevertheless, the two CDs, the savings account, and the checking account were listed on the inventory signed by O\u2019Donnell as assets of the guardianship estate.\nA guardian ad litem, appointed to examine the accounts of O\u2019Donnell\u2019s guardianship, reported on November 4, 1983, that the court should demand strict proof as to whether the two CDs and the two bank accounts were actually intended as joint tenancies and not merely joint tenancies for convenience only. On December 20, 1983, the circuit court entered an order prepared by O\u2019Donnell\u2019s attorney, directing that the two CDs and the two bank accounts \u201care assets to be used and applfied] to the sole and exclusive use of the disabled person [Alice Kirchwehm], notwithstanding the fact that said accounts are registered in the name of the disabled person and Doris O\u2019Donnell as joint tenants.\u201d (Emphasis added.) It appears that by that time, however, O\u2019Donnell had already transferred $100,000 from one CD to her own personal account in Wisconsin and it had been \u201cconsumed.\u201d\nOn April 28, 1984, Kirchwehm died in the Whitehall Nursing Home in Deerfield, Illinois, where she had lived for nearly four years. She left a will, also prepared by Schmidt.\nThe will was filed for independent administration and nominated O\u2019Donnell and Chicago Title and Trust Company as executors. The will, dated October 15, 1974, listed three general bequests totalling $12,500 and disposed of the residue of the estate in percentile shares to nine heirs and legatees. O\u2019Donnell was to receive a 20% residual share.\nChicago Title and Trust Company declined to serve as executor and O\u2019Donnell was appointed independent executor. Letters of office were issued on May 30, 1984. On August 13, 1984, Navicky filed an appearance and on January 21, 1985, he filed a petition to terminate the independent administration. The independent administration was terminated at that time, but O\u2019Donnell was retained as executor. Also on January 21, 1985, Navicky filed a petition for citation to recover property, which consisted of the two CDs and the two bank accounts. O\u2019Donnell filed an inventory of the personal estate of decedent on March 21, 1985. The only funds shown on this inventory were in a Belmont National Bank checking account in the amount of $3,586.26, the balance of the property being shown as shares of stock previously owned by decedent.\nAfter a trial, the circuit court dismissed the petition, holding that petitioner had not overcome the presumption in favor of joint tenancies by clear and convincing evidence. Included in the dismissal order was a finding that the Belmont National Bank account was O\u2019Donnell property in addition to the savings account and CDs. This appeal ensued.\nUnder Illinois law, an instrument creating a joint' account presumably speaks the whole truth. In order to go behind the terms of the agreement, the party claiming adversely to the agreement has the burden of establishing by clear and convincing evidence that a gift was not intended. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 591, 202 N.E.2d 470; In re Estate of Schroeder (1979), 74 Ill. App. 3d 690, 694, 393 N.E.2d 1128; In re Estate of Gibbons (1978), 65 Ill. App. 3d 314, 315-16, 382 N.E.2d 585; Bilek v. Ryan (1974), 19 Ill. App. 3d 1027, 1028, 313 N.E.2d 178; In re Estate of Aksenas (1973), 14 Ill. App. 3d 809, 810-11, 303 N.E.2d 473; In re Estate of Naumann v. Vanderwerff (1971), 1 Ill. App. 3d 419, 421, 274 N.E.2d 147.) The mere existence of a fiduciary relationship does not rebut the presumption of donative intent. (In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 938-40, 441 N.E.2d 158.) In rebutting the donative intent, the examination generally focuses on the establishment of the joint account, but subsequent occurrences may also be considered. In re Estate of Schroeder (1979), 74 Ill. App. 3d 690, 393 N.E.2d 1128; In re Estate of Naumann v. Vanderwerff (1971), 1 Ill. App. 3d 419, 421-22, 274 N.E.2d 147.\nIn the case sub judice, Navicky does not contend that the joint accounts were improperly established as to form. Rather, he contends that, regardless of their form, the accounts were created merely as a convenience for Kirchwehm.\nThe only testimony produced at the trial was to the effect that the accounts were not intended by Kirchwehm as gifts to O\u2019Donnell. Kirchwehm\u2019s attorney, Schmidt, testified that he had advised decedent in 1978 or 1979 to \u201cturn over her assets to someone who would manage them for her, preserve them for her, pay her bills out of them, and also look after her personal welfare.\u201d He discussed with Kirchwehm the advisability of having a guardian appointed and she agreed, saying: \u201cput someone on my will so my bills can be paid. I can\u2019t pay them. I am not able to do it.\u201d As to what was meant by her \u201cwill,\u201d Schmidt testified: \u201cShe meant giving someone authority to draw on her account *** so that person could pay her bills, her rent, her grocery bills, and the other bills.\u201d Schmidt advised her to use a title and trust company, but she said: \u201cDoris has been very nice to me and I trust her and I would like her.\u201d Schmidt then testified:\n\u201c[S]he did it solely for the purpose of enabling that person to handle her funds. She had money hidden all over her apartment. And she wasn\u2019t able to draw a check. Rodriguez used to do that, but I told her that there should be someone who was responsible to the Court for what he did, and that that someone would have to make a report to the Court yearly ***.\u201d\nHe testified further that no gift tax was ever filed by him for Kirchwehm in regard to any gift made by Kirchwehm to O\u2019Donnell.\nAlexander Rodriguez, a family friend, testified that after he refused to have his name added to the accounts, O\u2019Donnell was the \u201conly one that Alice trusted with the money, not to spend it on herself.\u201d\nO\u2019Donnell testified as an adverse witness. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1102.) She admitted that the two CDs and the two bank accounts were assets of the guardian estate. She also stated that she did Kirchwehm\u2019s banking and wrote her rent and grocery checks from 1974 until her death in 1984. O\u2019Donnell stated that decedent never told anyone in her presence that the CDs were gifts to O\u2019Donnell. She also stated that she never paid a gift tax on the accounts and that she had not paid income tax on the earnings of the joint CDs. She also admitted that during her tenure as Kirchwehm\u2019s guardian, she had transferred one of the jointly held CDs to her own personal account in Wisconsin and that the money had been spent by O\u2019Donnell and her husband. O\u2019Donnell did not testify that the joint accounts were set up by decedent for her to receive through survivorship of the joint tenancy. Nor did anyone else so testify.\nThe circuit court order of December 20, 1983, was read into evidence. That order specifically found that the two CDs and the two bank accounts (totalling $258,000) were assets for the \u201csole and exclusive use\u201d of Alice Kirchwehm \u201cnotwithstanding- the fact that *** [the] accounts are registered in the name of the disabled person [Alice Kirchwehm] and Doris O\u2019Donnell as joint tenants.\u201d\nOur supreme court has noted that the purpose behind the rebuttable presumption in favor of joint tenancies is to \u201cadd certainty to the law and at the same time protect a depositor\u2019s estate where the joint account was created without donative intent, for example where the account was opened for the convenience of the depositor.\u201d (Emphasis added.) Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 591, 202 N.E.2d 470.)\nPetitioner\u2019s burden was to show by clear and convincing evidence that a gift by Kirchwehm to O\u2019Donnell was not intended. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 591, 202 N.E.2d 470.) In consideration of all the testimony and other evidence, petitioner has proved clearly and convincingly that the joint accounts were merely for decedent\u2019s convenience. There is a total absence of any evidence to the contrary. In fact, O\u2019Donnell herself testified that the money in the joint accounts belonged to Kirchwehm and that decedent never told anyone in her presence that decedent was giving O\u2019Donnell the money. The evidence before the circuit court was completely inconsistent with the existence of a present donative intent. Indeed, decedent had provided a substantial portion, 20%, of her estate for O\u2019Donnell, in her will. (In re Estate of Morys (1973), 17 Ill. App. 3d 6, 307 N.E.2d 669.) The dismissal of the citation was error and must be reversed.\nIn his brief, Navicky seeks to have a constructive trust imposed upon O\u2019Donnell with regard to Kirchwehm\u2019s bank accounts and CDs which she has treated as her own property notwithstanding the fact that the joint tenancies were proved to have been established for the decedent\u2019s convenience. Although some references were made to this theory at trial, and Navicky\u2019s brief makes a point of it, O\u2019Donnell resists the imposition of a constructive trust for the reason that no pleadings in support thereof have been filed in the circuit court and the case proceeded as a citation matter. The circuit court was apparently persuaded that it had no jurisdiction to consider imposition of a constructive trust since the guardianship estate was closed prior to the opening of the decedent\u2019s estate and the ensuring citation proceedings.\nThere is no question but that the circuit court retains jurisdiction to enforce its prior orders (Cox v. Rice (1940), 375 Ill. 357, 31 N.E.2d 786; Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911, appeal denied (1981), 85 Ill. 2d 577), even though the guardianship proceedings had ended. In those proceedings, the specific finding of the court was that the CDs and bank accounts were \u201cassets to be used and applied] to the sole and exclusive use of\u201d Kirchwehm, notwithstanding the fact that the accounts were held in joint tenancy with O\u2019Donnell. The circuit court should have considered the ensuing events within the context of the preceding order to ascertain whether the order affecting the monies possessed by the guardianship estate had been violated. The relationship between Kirchwehm and O\u2019Donnell, as guardian and ward, was clearly fiduciary as a matter of law. (Parsons v. Estate of Wambaugh (1982), 110 Ill. App. 3d 374, 377, 442 N.E.2d 571, appeal denied (1983), 93 Ill. 2d 543) and the claim by Navicky, even as a citation proceeding, was within the jurisdiction of the circuit court as an equitable matter for the imposition of a constructive trust had such relief been sought by the petitioner (see Hobin v. O\u2019Donnell (1983), 115 Ill. App. 3d 940, 942, 451 N.E.2d 30). The petition for citation in the instant case stops short of seeking such relief, however, and the circuit court\u2019s rulings demonstrated that the cause was heard simply as a citation matter.\nAccordingly, the dismissal of the citation must be reversed and the cause remanded with directions to allow Navicky to file amended or additional pleadings seeking imposition of a constructive trust, the parties to offer such additional proof relative to such pleadings as they see fit, and otherwise to proceed consistently with this order.\nReversed and remanded, with directions.\nSTAMOS and SCARIANO, JJ., concur.\nDoris O\u2019Donnell\u2019s duties as guardian were since discharged and the guardianship closed, according to a statement by her attorney at the citation proceedings.\nThe ruling was based solely on petitioner\u2019s evidence. Although there were occasional references to violations by O\u2019Donnell of her fiduciary duty as guardian, the trial was treated as a citation matter with the petitioner assuming the burden of proof as to donative intent. Respondent\u2019s counsel did not produce any witnesses, declined to cross-examine respondent, and moved to dismiss the citation proceedings at the close of petitioner\u2019s evidence.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "David A. Beran, of Hickory Hills, and John M. Morrone, of Palos Heights, for appellant.", "George A. Beck, of Chicago, for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF ALICE A. KIRCHWEHM, Deceased (Enoch Navicky, Petitioner-Appellant, v. Doris O\u2019Donnell, Respondent-Appellee).\nFirst District (2nd Division)\nNo. 85\u20143160\nOpinion filed June 30, 1986.\nDavid A. Beran, of Hickory Hills, and John M. Morrone, of Palos Heights, for appellant.\nGeorge A. Beck, of Chicago, for appellee." }, "file_name": "0280-01", "first_page_order": 302, "last_page_order": 307 }