{
  "id": 2807646,
  "name": "WALTER L. GILMORE, Ex'r of the Estate of Ray L. Gilmore, Deceased, Executor-Appellant, v. MARY G. ROBERSON, Claimant-Appellee",
  "name_abbreviation": "Gilmore v. Roberson",
  "decision_date": "1976-05-11",
  "docket_number": "No. 75-310",
  "first_page": "150",
  "last_page": "152",
  "citations": [
    {
      "type": "official",
      "cite": "38 Ill. App. 3d 150"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "31 Ill. 2d 587",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
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    {
      "cite": "104 Ill. App. 2d 447",
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      "reporter": "Ill. App. 2d",
      "case_ids": [
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      "opinion_index": 0,
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    {
      "cite": "83 Ill. App. 2d 300",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
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        2556520
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      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "6 Ill. 2d 180",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2708170
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  "analysis": {
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  "last_updated": "2023-07-14T15:32:42.628819+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "WALTER L. GILMORE, Ex\u2019r of the Estate of Ray L. Gilmore, Deceased, Executor-Appellant, v. MARY G. ROBERSON, Claimant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nThis is an appeal from a summary judgment allowing a claim against the decedent\u2019s estate for *22,500 filed by Mary G. Roberson, based on \u201ca gift of money made in December, 1970, in the nature of a bank account * * * at First National Bank and Trust Company of Rockford \u2014 Gift completed by the delivery of the passbook to claimant.\u201d\nThe claimant\u2019s motion for summary judgment and her supporting affidavit with exhibits established that on December 8, 1970, a joint account was opened at that bank in the names of the decedent, Ray L. Gilmore, and the claimant, Mary G. Roberson, as joint tenants with the right of survivorship; that the decedent at that time gave claimant the passbook which she still has in her possession; that on or about July 19, 1973, a conservator was appointed for the said Ray L. Gilmore; that on July 20, 1973, the conservator withdrew all of the funds in the aforesaid joint account; that the decedent died less than two weeks later, on August 2, 1973; that claimant learned about such withdrawal after Gilmore\u2019s death; that none of the funds so withdrawn were required for his support there being adequate other assets inventoried in the decedent\u2019s probate estate; that during the decedent\u2019s lifetime the only withdrawals were of the interest earned and that the decedent forwarded the interest withdrawn to the claimant. The executor\u2019s \u201canswer\u201d (counteraffidavit) did not contradict any of the material facts set forth in the claimant\u2019s motion and affidavit. However, the answer stated that appellee\u2019s claim was \u201cbased upon a long period of immoral conduct\u201d between the claimant and decedent, and that the executor \u201cbelieves that there was a contract that existed between the claimant and the deceased based on the claimant\u2019s agreement to satisfy his sexual needs without being married to him and his payment to her by the establishment of a fund. That this fund was established purely on the basis of the claimant\u2019s immoral conduct with the deceased.\u201d\nThe only issue presented is whether the executor\u2019s \u201cbelief\u201d as to the existence of such contract presents a genuine issue as to a material fact so as to preclude the entry of the summary judgment in favor of the claimant.\nThe joint bank account was created by the claimant and the decedent in compliance with the law and the decedent gave the passbook to the claimant at that time. Such actions give rise to a presumption that a gift was intended. In re Estate of Schneider, 6 Ill. 2d 180; Kirkham v. Halford, 83 Ill. App. 2d 300; In re Estate of Foster, 104 Ill. App. 2d 447.\nIn Murgic v. Granite City Trust & Savings Bank, 31 Ill. 2d 587, 591, the court said:\n\u201c[A]n instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.\u201d\nThe executor\u2019s counteraffidavit presented nothing more than his \u201cbelief\u201d that there was a contract between the claimant and the decedent which contemplated \u201cimmoral\u201d acts. Nothing was presented by the executor to establish that a gift was not intended by the decedent or to rebut the presumption of a gift.\nUnder these circumstances, therefore, the judgment of the circuit court of Winnebago County is affirmed.\nJudgment affirmed.\nT. J. MORAN, P. J., and DIXON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE RECHENMACHER"
      }
    ],
    "attorneys": [
      "James Berry, of Berry & Berry, of Rockford, for appellant.",
      "Stephen W. McCarty, of Rockford, for appellee."
    ],
    "corrections": "",
    "head_matter": "WALTER L. GILMORE, Ex\u2019r of the Estate of Ray L. Gilmore, Deceased, Executor-Appellant, v. MARY G. ROBERSON, Claimant-Appellee.\nSecond District (2nd Division)\nNo. 75-310\nOpinion filed May 11, 1976.\nRehearing denied June 11, 1976.\nJames Berry, of Berry & Berry, of Rockford, for appellant.\nStephen W. McCarty, of Rockford, for appellee."
  },
  "file_name": "0150-01",
  "first_page_order": 178,
  "last_page_order": 180
}