{ "id": 5456305, "name": "In re ESTATE OF RICHARD W. GABBETT, Deceased (Judith K. Landers, as Legatee, Petitioner-Appellant and Cross-Appellee, v. Robert L. Ray, as Legatee, Respondent-Appellee and Cross-Appellant (W. Thomas Ryder, as Coex'r, Petitioner-Appellee))", "name_abbreviation": "Gabbett v. Ray", "decision_date": "2004-09-02", "docket_number": "No. 4-04-0093", "first_page": "900", "last_page": "905", "citations": [ { "type": "official", "cite": "352 Ill. App. 3d 900" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "340 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "pin_cites": [ { "page": "166" } ], "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 500", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2959890 ], "year": 1975, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0500-01" ] }, { "cite": "125 N.E.2d 600", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "605" }, { "page": "603" } ], "opinion_index": 0 }, { "cite": "5 Ill. 2d 417", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703246 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "425" }, { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/5/0417-01" ] }, { "cite": "123 N.E. 563", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1919, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "288 Ill. 388", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4957107 ], "year": 1919, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill/288/0388-01" ] }, { "cite": "30 N.E.2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1940, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "375 Ill. 43", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2535656 ], "year": 1940, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/ill/375/0043-01" ] }, { "cite": "791 N.E.2d 588", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 943", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469942 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "948" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0943-01" ] }, { "cite": "652 N.E.2d 350", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "353" } ], "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 106", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258639 ], "year": 1995, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0106-01" ] }, { "cite": "186 N.E. 145", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1933, "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "352 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5295309 ], "year": 1933, "pin_cites": [ { "page": "557" } ], "opinion_index": 0, "case_paths": [ "/ill/352/0550-01" ] }, { "cite": "732 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "662" }, { "page": "663" }, { "page": "663" } ], "opinion_index": 0 }, { "cite": "314 Ill. App. 3d 720", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140377 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "724" }, { "page": "725-26" }, { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0720-01" ] }, { "cite": "41 N.E.2d 544", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1942, "pin_cites": [ { "page": "547" }, { "page": "547" }, { "page": "547" } ], "opinion_index": 0 }, { "cite": "379 Ill. 470", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2551419 ], "weight": 3, "year": 1942, "pin_cites": [ { "page": "477-78" }, { "page": "478" }, { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/ill/379/0470-01" ] } ], "analysis": { "cardinality": 563, "char_count": 11006, "ocr_confidence": 0.774, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15976626436521973 }, "sha256": "94904e5b71919d0c4fc73f6efb3db4f3496016f49ae99b0a0a40d2b4f11612e5", "simhash": "1:137ef89c7c0f968c", "word_count": 1823 }, "last_updated": "2023-07-14T19:57:06.765456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "TURNER and STEIGMANN, JJ., concur." ], "parties": [ "In re ESTATE OF RICHARD W. GABBETT, Deceased (Judith K. Landers, as Legatee, Petitioner-Appellant and Cross-Appellee, v. Robert L. Ray, as Legatee, Respondent-Appellee and Cross-Appellant (W. Thomas Ryder, as Coex\u2019r, Petitioner-Appellee))." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nOn November 17, 2002, Richard W. Gabbett died testate, leaving behind approximately 220 acres of land located in Mississippi Township, Jersey County, Illinois. Gabbett\u2019s will named Robert L. Ray, his nephew, and W. Thomas Ryder as coexecutors of the estate. On August 6, 2003, Judith K. Landers, Gabbett\u2019s daughter, filed a petition asking the trial court to direct Ray and Ryder to distribute \u201cGabbett Land Trust Beneficial Interests\u201d and referencing the land located in Mississippi Township, Jersey County, Illinois. On January 12, 2004, the court denied Lander\u2019s petition, finding \u201cdecedent died being the true record title owner of the real estate.\u201d Landers appeals, arguing that the court erred by finding Gabbett did not \u201ceffectively\u201d convey the property into a land trust. We affirm.\nGabbett\u2019s will, dated December 1, 1982, contained the following bequest to Ray:\n\u201cI make the following specific bequests:\n1.1 give the real estate that I own in Mississippi Township, Jersey County, Illinois plus all farm machinery, farm livestock, growing or stored grain, and all farm tools to my nephew, ROBERT L. RAY. ROBERT L. RAY has worked on the farm with me in recent years and I know that he will continue to operate the farm after my death. This gift is made in appreciation of his help and kindness to me.\u201d\nGabbett left the residue of his estate to his daughters, Landers and Joanne M. Ringhausen.\nOn December 2, 2002, the trial court appointed Ray and Ryder as coexecutors of Gabbett\u2019s estate and ordered them to file an inventory within 60 days. On March 12, 2003, Ray and Ryder filed an inventory \u201cof the real and personal estate of the decedent.\u201d On June 5, 2003, Ryder filed a petition seeking \u201ccourt direction.\u201d Ryder stated he had \u201creceived information of the existence of certain documents relating to a Land Trust involving the Farm Property in a file of Attorney Gail Gisy\u2019s being held at Attorney George P Wittman\u2019s Office.\u201d Ryder reviewed the contents of the file held by Wittman. Ryder found \u201can original signed Land Trust Agreement, an original signed, but unrecorded Quit Claim Deed, and other documents.\u201d Ryder attached copies of the documents to his petition.\nOn August 6, 2003, Landers filed a petition asking the trial court to direct Ray and Ryder to distribute \u201cGabbett Land Trust Beneficial Interests,\u201d asserting that the \u201cbeneficial interests\u201d were \u201cpersonal property and *** pass under the residuary provisions of the decedent\u2019s will.\u201d\nThe record shows the following. On November 21, 1979, Gabbett appeared in Gisy\u2019s law office and signed multiple documents. A document titled \u201cDEED IN TRUST\u201d purported to transfer the land located in Mississippi Township, Jersey County, Illinois, into \u201cthe GABBETT LAND TRUST\u201d via quitclaim deed. The document identified Gabbett as the grantor and the trustee \u201cunder the provisions of a TRUST AGREEMENT\u201d dated November 21, 1979. The deed was not recorded.\nThe \u201cTRUST AGREEMENT\u201d also identified Gabbett as trustee and as sole beneficiary. In addition, the agreement provided that \u201cthe total number of shares in said trust shall consist of 5720 shares.\u201d\nGabbett signed four trust certificates and two \u201cASSIGNMENT OF INTEREST IN LAND TRUST\u201d documents. The documents identified Gabbett as the owner of \u201c5720 shares in certain property in said Land Trust.\u201d Gabbett assigned three shares to each of his daughters. Following Gabbett\u2019s death, Ryder \u201creceived information\u201d of the existence of the various documents located in a file in Wittman\u2019s law office.\nOn January 1, 1980, Gabbett appeared in Ryder\u2019s law office and entered into a \u201cJOINT VENTURE AGREEMENT\u201d with Ray to \u201ccarry on, as joint venturers, a livestock and grain farming operation for profit.\u201d The agreement identified Gabbett as \u201cthe owner of 220 acres located in Section 10, Mississippi Township, Jersey County, Illinois.\u201d Further, the agreement recited that \u201c[ljegal title to the real estate *** acquired prior to the date of this agreement *** shall remain in [the] name of Richard W Gabbett.\u201d\nThe record shows three additional trust certificates and two additional \u201cASSIGNMENT OF INTEREST IN LAND TRUST\u201d documents signed by Gabbett on December 16, 1980. Gabbett assigned three additional shares \u201cin certain property in said Land Trust\u201d to each of his daughters. These documents were also found in the file held by Wittman.\nOn September 1, 1982, Gabbett signed his will, giving \u201cthe real estate that I own in Mississippi Township, Jersey County, Illinois,\u201d to Ray.\nAfter November 21, 1979, Gabbett continued to file his own individual income tax returns and did not file fiduciary income tax returns as trustee.\nFollowing a hearing, the trial court denied Lander\u2019s petition, stating:\n\u201cThe property was never treated by the decedent as being held in trust. He never filed fiduciary income tax returns. There is no evidence he distributed income to the holders of beneficial interests. It is further evidenced by his recitals in the joint venture agreement and in his last will that he, and not the trust, was the owner of the real estate.\u201d\nThe court found \u201cdecedent died being the true record title owner of the real estate.\u201d\nThis appeal followed.\nLanders argues that the trial court erred by concluding that Gabbett died \u201cbeing the true record title owner of the real estate.\u201d Specifically, she challenges the court\u2019s conclusion that Gabbett did not \u201ceffectively\u201d convey the property into a land trust.\nA conveyance of real property does not occur merely through the execution of a deed. The grantor must also deliver the deed, and the grantee must accept it. Seibert v. Seibert, 379 Ill. 470, 477-78, 41 N.E.2d 544, 547 (1942); In re Estate of Wittmond, 314 Ill. App. 3d 720, 724, 732 N.E.2d 659, 662 (2000). Delivery of a deed is essential to complete a conveyance, and although no particular method of delivery is required (McClugage v. Taylor, 352 Ill. 550, 557, 186 N.E. 145, 148 (1933)), the grantee must affirmatively show that the grantor\u2019s words or conduct evinced an intent to pass title at the time of the purported delivery (Foster v. Foster, 273 Ill. App. 3d 106, 110, 652 N.E.2d 350, 353 (1995), citing Seibert, 379 Ill. at 478, 41 N.E.2d at 547).\n\u201c[P]lacing a deed in the hands of a grantee does not constitute delivery where it is shown the intention of the parties was that it was not to become operative immediately and where such intention is evidenced by continued acts of ownership and operation.\u201d Seibert, 379 Ill. at 478, 41 N.E.2d at 547.\nCiting Whittaker v. Stables, 339 Ill. App. 3d 943, 791 N.E.2d 588 (2003), Landers contends she need not provide evidence of delivery because the various instruments named Gabbett as sole grantor and sole grantee. Therefore, \u201cdelivery and acceptance *** is automatic[ ].\u201d Such a presumption is contrary to the long-standing rule that no delivery is presumed where the grantor retains possession of the deed. See Dunn v. Heasley, 375 Ill. 43, 48, 30 N.E.2d 628, 631 (1940); Wittmond, 314 Ill. App. 3d at 725-26, 732 N.E.2d at 663.\nIn Whittaker, the appellate court held that a letter created by a single individual serving as grantor and grantee satisfied the requirements to amend a trust \u201c[i]n terms of \u2018delivery.\u2019 \u201d Whittaker, 339 Ill. App. 3d at 948, 791 N.E.2d at 592. Whether the grantor intended to pass title at the time of delivery was not at issue.\nWe note that this case presents a unique situation. At the time of the purported delivery, Gabbett not only served as sole grantor and sole trustee, but also as sole beneficiary. The parties do not cite to a case in which the same person was at the same time sole grantor, sole trustee, and sole beneficiary. In Wilson v. Harrold, 288 Ill. 388, 391, 123 N.E. 563, 564 (1919), our supreme court held that the same individual cannot be at the same time sole trustee and sole beneficiary of the same identical interest.\nAlthough a settlor may create a trust of personal property whereby he names himself as trustee and acts as such for the beneficiary (Farkas v. Williams, 5 Ill. 2d 417, 425, 125 N.E.2d 600, 605 (1955)), and a grantor/trust settlor may also be a beneficiary of a land trust (Wittmond, 314 Ill. App. 3d at 725, 732 N.E.2d at 663), there must be a completed separation and transfer of the legal interests from the beneficial interests (Samuel v. Northern Trust Co., 34 Ill. App. 3d 500, 505, 340 N.E.2d 162, 166 (1975)). In the present case, Gabbett remained in possession of the land and exercised complete control over it for his own benefit. A trust cannot exist when the legal and beneficial interests are in the same person.\nFurther, the record does not show that Gabbett intended to pass title at the time of the purported delivery. Immediately after the execution of each of the various documents, Gabbett continued to deal with the land as if he owned the property absolutely. He continued to file his own individual income tax returns and did not file fiduciary income tax returns as trustee. The record does not show any other individual filed taxes on income generated by the farm. Gabbett entered into a \u201cJOINT VENTURE AGREEMENT\u201d identifying himself as \u201cthe owner of 220 acres located in Section 10, Mississippi Township, Jersey County, Illinois.\u201d The agreement recited that \u201c[l]egal title to the real estate *** shall remain in name of Richard W. Gabbett.\u201d On September 1, 1982, Gabbett signed his will giving \u201cthe real estate that I own in Mississippi Township, Jersey County, Illinois,\u201d to Ray. An absolute owner may dispose of his property during his lifetime in any manner he sees fit. Farkas, 5 Ill. 2d at 422, 125 N.E.2d at 603.\nFurther, the deed of conveyance was found in the possession of a third party (Wittman) following Gabbett\u2019s death. The sole testimony at hearing was that Landers was present in Gisy\u2019s law office on November 21, 1979, and she observed her father sign the various documents. The record does not show whether Gabbett left the deed with Gisy without the right to reclaim it or how the documents were relocated to Wittman\u2019s law office.\nAccordingly, the trial court\u2019s finding that \u201cdecedent died being the true record title owner of the real estate\u201d is not against the manifest weight of the evidence.\nBecause we affirm the trial court\u2019s order, we need not address respondent\u2019s cross-appeal.\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER and STEIGMANN, JJ., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Gregory W Coffey (argued) and Sandra J. Tatoian, both of Coffey Law Firm, EC., of Edwardsville, for appellant.", "James S. Sinclair and Stephen A. Stobbs (argued), both of Stobbs & Sinclair, Ltd., of Alton, for appellee Robert L. Ray." ], "corrections": "", "head_matter": "In re ESTATE OF RICHARD W. GABBETT, Deceased (Judith K. Landers, as Legatee, Petitioner-Appellant and Cross-Appellee, v. Robert L. Ray, as Legatee, Respondent-Appellee and Cross-Appellant (W. Thomas Ryder, as Coex\u2019r, Petitioner-Appellee)).\nFourth District\nNo. 4\u201404\u20140093\nArgued August 26, 2004.\nOpinion filed September 2, 2004.\nGregory W Coffey (argued) and Sandra J. Tatoian, both of Coffey Law Firm, EC., of Edwardsville, for appellant.\nJames S. Sinclair and Stephen A. Stobbs (argued), both of Stobbs & Sinclair, Ltd., of Alton, for appellee Robert L. Ray." }, "file_name": "0900-01", "first_page_order": 918, "last_page_order": 923 }