{ "id": 2505538, "name": "In re Estate of Margaret G. Fidler, Deceased-(Irene Middaugh, Ex'r, Petitioner-Appellant, Cross-Appellee, v. Keystone Custodian Funds, Inc., et al., Respondents-Appellees, Cross-Appellants)", "name_abbreviation": "Middaugh v. Keystone Custodian Funds, Inc.", "decision_date": "1974-10-17", "docket_number": "No. 59452", "first_page": "1046", "last_page": "1053", "citations": [ { "type": "official", "cite": "23 Ill. App. 3d 1046" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 N.E.2d 722", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2610491 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0272-01" ] }, { "cite": "218 N.E.2d 854", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill.App.2d 314", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2587882 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0314-01" ] }, { "cite": "314 N.E.2d 549", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.App.3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5344387 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0514-01" ] }, { "cite": "188 N.E.2d 743", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill.App.2d 372", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2456242 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/39/0372-01" ] }, { "cite": "276 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "2 Ill.App.3d 98", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2746620 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0098-01" ] }, { "cite": "202 N.E.2d 470", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill.2d 587", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833193 ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0587-01" ] }, { "cite": "236 N.E.2d 396", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "93 Ill.App.2d 174", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2645385 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/93/0174-01" ] }, { "cite": "185 N.E.2d 850", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill.2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5355116 ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0062-01" ] } ], "analysis": { "cardinality": 782, "char_count": 16024, "ocr_confidence": 0.76, "pagerank": { "raw": 1.7173954722396515e-07, "percentile": 0.7033865680972133 }, "sha256": "4c3f36a8567461b7720b0abece2a6b146d10ff1b99a0cc6975b6271c9abbdb52", "simhash": "1:3171ba097026d68f", "word_count": 2582 }, "last_updated": "2023-07-14T18:19:43.775116+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re Estate of Margaret G. Fidler, Deceased\u2014(Irene Middaugh, Ex\u2019r, Petitioner-Appellant, Cross-Appellee, v. Keystone Custodian Funds, Inc., et al., Respondents-Appellees, Cross-Appellants)." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE McNAMARA\ndelivered the opinion of the court:\nIrene Middaugh, as executrix of the estate of Margaret G. Fidler, deceased, petitioned the circuit court of Cook County for the issuance of a citation to recover stock and proceeds of redeemed stock allegedly held by decedent and Bernadine V. Strand in tenancy in common at the time of decedent\u2019s demise. The primary issue presented is whether the trial court was correct in determining that Mrs. Strand was a surviving joint tenant. Named as respondents in addition to Mrs. Strand were Link, Gorman, Peck and Company (hereinafter \u201cLink\u201d), deced\u00e9nt\u2019s investment dealer; National Securities and Research Corporation (hereinafter \u201cNSRC\u201d), American Mutual Fund, Inc. (hereinafter \u201cAmerican\u201d) and Keystone Custodian Funds, Inc., and Investment Companies Services Corporation (hereinafter \u201cKeystone\u201d), the coiporations whose stock is involved in this action, and the Bank of New York, the successor trustee of a stock series in \u2019NSRC. Upon being served with a citation summons, Keystone, a New York Corporation, filed a special appearance and moved to quash on the ground that the court lacked jurisdiction over it. After the court denied the motion to quash summons, Keystone joined the other respondents in maintaining that Mrs. Strand was the surviving joint tenant in the stock. After a hearing, the court denied the petition and discharged the respondents. Petitioner appeals.\nPetitioner contends that the trial judge erred in concluding that a joint tenancy had been created in the stock and in refusing to admit into evidence two of her exhibits. Respondents argue that the court\u2019s decisions were correct, and Keystone additionally contends th\u00e1t it is protected by statute in its redemption of some of the stock upon Strand\u2019s request after decedent\u2019s death. Keystone has also filed a cross-appeal from the trial court\u2019s order denying its motion to quash service of summons.\nSince we have concluded that it is necessary only to consider the issues raised by petitioner to dispose of the appeal, the following statement of facts shall pertain to those issues only.\nUntil the faU of 1966, the decedent and her husband Harry Fidler owned in joint tenancy shares of stock in the mutual funds of American, Keystone, and NSRC. The Fidl'ers also participated in level payment withdrawal plants in Keystone and NSRG whereby they would receive monthly checks.\nOn August 17, 1963, the decedent wrote letters to Keystone and NSRG requesting a change in the title of the payment accounts. The letters, typed on stat'onery bearing Link\u2019s letterhead, expressed the Fidlers\u2019 desire to transfer ownership in the accounts to \u201cMargaret G. Fidler and Bernadine V. Strand.\u201d The decedent, who signed the letters along with Mrs. Strand, did not expressly ind'cate the precise legal manner in which the accounts were to be held. Enclosed in the letter to NSRG was an application form, dated August 31, 1986, for that company\u2019s level payment withdrawal plan. The appl cation had been prepared by Link and had been signed by the decedent and Mrs. Strand. Printed in the space reserved for the listing of the shareowners was \u201cMargaret G. Fidler and Bernad'ne V. Strand (Jointly).\u201d NSRG, as well as Keystone, subsequently transferred ownership in the accounts into the names of the two women as joint tenants with right of survivorship. Since decedent directed in her letter to Keystone that the monthly checks were to be issued in her name alone, Key:.tone sent to her at regular intervals statements of account in the plan reflecting the manner in which legal title was held.\nLink sent letters, dated August 31, 1966, to the stock transfer departments of the corporate respondents directing that the stock ownership was to be transferred to decedent and Mrs. Strand in joint tenancy with the right of survivorship. The letters were enclosed with the Fidlers\u2019 old stock certificates, which bore their blank endorsements on the reverse side. Petitioner concedes that the stock certificates which were subsequently reissued bore the names of the two women as the owners followed variously with the initials \u201cJT,\u201d \u201cJTWRS,\u201d and \u201cJT TEN WROS.\u201d\nDecedent executed a will on October 3, 1969, and died on December 18, 1970. Her will, admitted to probate, contained several bequests of general legacies to her relatives. Her residuary estate was to be divided among several specfie charities. The will made no mention of Mrs. Strand or the stock holdings. The executrix stated in her petition that an inventory of decedent\u2019s assets had disclosed that tire stocks involved in the present action encompassed her entire estate.\nSome oral testimony was also adduced at the hearing. The first two witnesses called by pet'tioner were Nancy Whitten, an attorney representing Keystone, and Edward Malone, an officer in charge of the transfer department of a subsidiary of Keystone. By their combined testimony petitioner hoped to lay a foundation for the introduction of two exhibits. The exhibits purported to be the general transfer certifications of Keystone, signed by the Fidlers, relating to the change in stock ownership. The documents recited that the stock was to be transferred to the decedent and Mrs. Strand, but failed to state the precise legal manner in which the stock was to be held. Keystone conceded that the documents were originals and that they had been obtained from Keystone\u2019s archives. The trial court denied their admission into evidence because of a lack of authentication.\nMrs. Strand testified that Harry Fidler had been her brother-in-law. She stated that decedent had lived with her up to a year before her death.\nPetitioner testified that the decedent came to live with her after leaving Mrs. Strand. She testified that decedent had tried to get her to remove Mrs. Strand\u2019s name from the stocks because \u201cthe money was all hers and that she [Mrs. Strand] treated her so mean that she had to move away from her.\u201d\nA neighbor of the petitioner testified that he had accompanied the decedent to Mrs. Strand\u2019s home on two occasions to recover personal belongings and implied that Mrs. Strand initially had obstructed them.\nPetitioner\u2019s first and primary contention is that the trial court erred in implicitly concluding that the evidence showed that the decedent had created a joint tenancy and not a tenancy in common with Mrs. Strand in the stock.\nThe key provision in this regard is section 2(b) of \u201cAn Act to revise the law in relation to joint rights and obligations\u201d (Ill. Rev. Stat. 1971, ch. 76, par. 2(b)). That section of the statute reads in pertinent part:\n\u201cWhen shares of stock * * * are or have been issued or registered by any corporation, association or other entity in the names of two or more persons as joint tenants with' the right of suiwivorship, such corporation * * * may, upon the death of any one of such registered owners, transfer said shares s * * to or upon the order of the survivor * * * without inquiry into the existence, validity or effect of any such will or other instrument in writing or the right of such survivor or survivors to receive the property, and without liability to any other person whomsoever who might claim an interest in or a right to receive all or a portion of the property so transferred; * *\nIn interpreting this provision, our supreme court has stated that the registration of stock ownership in appropriate statutory language shall create a right of survivorship, and upon the death of one joint tenant, ownership passes to the surviving joint tenant, subject to divestment if the circumstances surrounding the transaction warrant it. (Frey v. Wubbena (1962), 26 Ill.2d 62, 185 N.E.2d 850.) A signed agreement between the parties need not be executed to create a joint tenancy in stock. (In Re Estate of Pokorney (1968), 93 Ill.App.2d 174, 236 N.E.2d 396.) A prima facie presumption of donative intent exists where the proof shows statutory compliance. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill.2d 587, 202 N.E.2d 470.) An aggrieved party must prove by clear and convincing evidence that the decedent lacked the intent to create a joint tenancy. (Estate of Zengerle v. Greenman (1971), 2 Ill.App.3d 98, 276 N.E.2d 128.) The remedy of divestment preserves those forms of equitable relief afforded in cases involving a confidential relationship, fraud, undue influence, the investiture of nominal title for the purpose of convenience, and situations of like character. Lytle v. Northern Trust Co. (1963), 39 Ill.App.2d 372, 188 N.E.2d 743.\nWe shaU initially aHude to petitioner\u2019s threshold argument that the presumption of survivorship implanted in the statute should not be recognized here since the registration of stock ownership upon the corporate books did not comply with the Frey statement that it denote in \u201cappropriate statutory language\u201d the joint tenancy nature of the holdings. Petitioner interprets the phrase used in Frey to require the use of exact terminology, \u201cjoint tenancy with right of survivorship,\u201d on the corporate books before the co-owner of the stock can claim the presumptive sur-vivorship feature.\nWe believe petitioner has no standing to raise this issue on review. The record discloses that the entire thrust of petitioner\u2019s argument was directed toward establishing that the stock in question had been registered in joint tenancy with right of survivorship in disregard of the intentions and directions of the decedent. This fact is made evident when it is noted that petitioner did not contest respondents\u2019 answers to interrogatories which stated that the stock had been registered on their books in the names of the two women as \u201cJoint Tenants with Right of Survivor-ship.\u201d Indeed, during argument on respondents\u2019 motion to dismiss the proceedings, petitioner\u2019s counsel stated: \u201cI don\u2019t care how they were registered, but there were never instructions issued.\u201d Consequently, petitioner is foreclosed from altering her theory of recovery on appeal. Gowdy v. Richter (1974), 20 Ill.App.3d 514, 314 N.E.2d 549.\nTherefore, respondents are entitled to the presumption that their records properly evidenced decedent\u2019s intention and that Mrs. Strand became at decedent\u2019s death the owner of all the stock. We next must consider the evidence to determine whether petitioner clearly and convincingly made a case for divestiture.\nPetitioner\u2019s argument is primarily based upon decedent\u2019s signed letters of August 17, 1966, to Keystone and NSRC. She contends that since the letters omitted any reference to the precise legal manner in which the transferred ownership in the stock was to be held, it must be presumed that decedent\u2019s intent was to hold the stock in tenancy in common with Mrs. Strand.\nIn our opinion, the letters do not clearly and convincingly prove petitioner\u2019s contention. The short answer to the argument is that the letters specifically relate to the manner in which ownership was to be transferred to the companies\u2019 level payment withdrawal plans and not ownership of the stock. Moreover, even if we were to detect from the contents of a letter a desire by decedent that the letter be deemed an indication of the stock assignment as well, the circumstances surrounding this transaction strongly rebut any implication that the ownership in the stock and in the payment plans was to be held in tenancy in common. The NSEC application form for the withdrawal payment plan, which had been prepared by Link and which bore the signatures of the two women, stated on its face that the shareowners were \u201cMargaret G. Fidler and Bernadine V. Strand (Jointly).\u201d Link sent letters to the respondent corporations specifying that the assignment in ownership was to be made to the two women in joint tenancy. Moreover, the reissued certificates reflected on their face the joint tenancy nature of the holdings, and decedent regularly received from Keystone statements of account which showed that the account had been registered in joint tenancy with right of survivor-ship. Yet the record is silent regarding any objection or notification by the decedent or anyone else to the respondent corporations from the time of this transaction to the date of decedent\u2019s death 4 years later.\nPetitioner argues, however, that any doubts as to decedent\u2019s intent at the time of the present transaction are dissipated when one examines the contents of her will and the testimony at the hearing. The will, executed more than 3 years after the stock transfer, granted several bequests of general legacies to relatives without mention'ng Mrs. Strand or the stock. At the time of death, decedent\u2019s entire estate allegedly consisted of the stock. Petitioner also points out that the testimony demonstrated that the decedent and Mrs. Strand were not on good terms at the time of decedent\u2019s death.\nThis argument overlooks the fact that evidence of lack of donative intent must focus upon or relate back to the time of the creation of the joint tenancy. (In Re Estate of Stang (1966), 71 Ill.App.2d 314, 218 N.E.2d 854.) The evidence adduced by petitioner does not approach meeting this standard. Nothing can be drawn from the fact of the omission in the will of any mention of Mrs. Strand or the stock. The stock transfer took place more than 3 years prior to the will\u2019s execution. (See Murgic v. Granite City Trust & Savings Bank.) Moreover, any deterioration in the friendship between the two women has no material relevancy to the intent of the decedent at the time of the stock transfer. The legislature has determined that joint tenancy is an effective alternative to a will for the transfer of property upon death, and has set forth a specific means to abrogate the joint tenancy relationship prior to the death of one of the parties. The scanty evidence in the present case does not show clearly and convincingly the lack of donative intent on the part of the decedent at the time the ownership in the stock was transferred.\nPetitioner\u2019s next contention is that the trial judge erred in refusing to admit into evidence petitioner\u2019s Exhibits 1 and 2 for Identification. The exhibits purported to be general transfer certifications in the stock transfer transaction relating to Keystone. They also purportedly bore the signature of the Fidlers and named as transferees the decedent and Mrs. Strand. The court denied their admission into evidence because of lack of a proper foundation, specifically lack of authentication. Although respondents admitted that the documents were the originals, and that they had been obtained from Keystone\u2019s archives, no evidence was offered regarding the genuineness of the signatures of the Fidlers.\nThe trial court was correct in refusing to admit the documents into evidence. In order to have a document introduced into evidence, the moving party must lay foundations to circumvent hearsay, authentication, and best evidence preclusion rules. (In Re Application of County Collector (1974), 18 Ill.App.3d 272, 309 N.E.2d 722.) A timely objection was made in the present case, and petitioner did not bother to prove the authenticity of the documents. Moreover, even if the court erred in refusing to admit the two documents in evidence, their introduction would have had an insignificant effect on the result of this case.\nFor the reasons stated, the order of the circuit court of Cook County denying the petition for the issuance of a citation and discharging respondents is affirmed.\nOrder affirmed.\nMcGLOON and MEJDA, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE McNAMARA" } ], "attorneys": [ "Black and Beerman, of Chicago, for appellant.", "Chapman and Cutler, of Chicago (Abbey Blattberg and Nancy S. Whitten, of counsel), for appellee Keystone Custodian Funds, Inc.", "Robert J. Egan, of Chicago (Richard A. Michael, of counsel), for appellee Bernadine V. Strand." ], "corrections": "", "head_matter": "In re Estate of Margaret G. Fidler, Deceased\u2014(Irene Middaugh, Ex\u2019r, Petitioner-Appellant, Cross-Appellee, v. Keystone Custodian Funds, Inc., et al., Respondents-Appellees, Cross-Appellants).\n(No. 59452;\nFirst District (3rd Division)\nOctober 17, 1974.\nBlack and Beerman, of Chicago, for appellant.\nChapman and Cutler, of Chicago (Abbey Blattberg and Nancy S. Whitten, of counsel), for appellee Keystone Custodian Funds, Inc.\nRobert J. Egan, of Chicago (Richard A. Michael, of counsel), for appellee Bernadine V. Strand." }, "file_name": "1046-01", "first_page_order": 1070, "last_page_order": 1077 }