Estate of Aimone, Matter of

• Decision Date: 31 March 1992
• Docket Number: No. 3-90-0895,3-90-0895
• Parties: , 168 Ill.Dec. 772 In the Matter of the ESTATE OF Edith M. AIMONE, Deceased (Dianne Arnett, Petitioner-Appellee, v. Ruth Jane Burdett, Respondent-Appellant). Third District
• Court: United States Appellate Court of Illinois

Page 94

590 N.E.2d 94 226 Ill.App.3d 1057, 168 Ill.Dec. 772 In the Matter of the ESTATE OF Edith M. AIMONE, Deceased
(Dianne Arnett, Petitioner-Appellee, v. Ruth Jane
Burdett, Respondent-Appellant). No. 3-90-0895. Appellate Court of Illinois, Third District. March 31, 1992.

Page 95

[226 Ill.App.3d 1058] [168 Ill.Dec. 773] Bruce Thiemann (argued), Hafele, Thiemann & Carter, Peoria, for Ruth Jane Burdett.

Mary A. Corrigan (argued), Gery R. Gasick, Quinn, Johnston, Henderson & Pretorius, Chartered, Peoria, for Dianne Arnett.

Joseph F. Hession, Littler, Renner, Howard & Schroeder, Peoria, for Edith M. Aimone.

Mary Lee Faupel, Peoria, for Edith Nickerson.

Presiding Justice BARRY delivered the Opinion of the court:

After the death of Edith M. Aimone, Dianne Arnett, decedent's granddaughter, brought an action to have certain funds in the possession of her aunt, Ruth Jane Burdett, declared to be assets of the estate of decedent for distribution according to her will. Burdett appeals from entry of summary judgment in favor of Arnett.

On May 9, 1984, Edith M. Aimone executed a will which left all of her property to her husband John if he survived her and, if he did not survive, then her residence to her granddaughter Dianne Arnett and the rest of her property to her two daughters, Ruth Jane Burdett and Edith Nickerson, and to her granddaughter, Dianne Arnett, Nickerson's daughter, in equal shares.

Edith's will contained the following Section 5:

"I have made this Last Will and Testament pursuant to a contract and agreement between my husband and me for the purpose of disposing of all our property, whether owned by us as joint tenants, as tenants in common or in severalty, in accordance with a common plan. The reciprocal and other gifts made herein are in fulfillment of this purpose and plan and in consideration of each waiving the right, during our joint [226 Ill.App.3d 1059] lives, to alter, amend or revoke our respective and mutual Last Wills and Testaments, in whole or in part, by Codicil or otherwise, without notice to the other, or under any circumstances after the death of the first of us to die."

According to affidavits in the record, after John suffered a stroke and was hospitalized, Edith became concerned that his medical bills would deplete all their savings. On January 27 and 28, 1988, she withdrew $75,000 from three accounts belonging to John and Edith Aimone jointly and placed cashier's checks in that amount in her safety deposit box. Each cashier's check was payable to Edith Aimone or Ruth Burdett and Edith Nickerson. John died on March 15, 1988. In October of the same year Edith Aimone was a patient in a nursing home because of gangrene developing in one leg. She signed a power of attorney authorizing her two daughters to sign checks. On October 17, 1988, pursuant to the power of attorney, Burdett and Nickerson converted the cashier's checks into certificates of deposit payable to Edith Nickerson and Ruth Burdett.

According to affidavits and other documents in the record, John and Edith together gave $500 each to Dianne Arnett, her husband Kevin Arnett, Ruth Burdett, and Edith Nickerson on January 12, 1987, and on July 31, 1987, purchased a $4,000 certificate of deposit in the names of Arnett, Burdett, and Nickerson. After John's death, Edith gave Dianne Arnett $500 for car repairs on June 19, 1988, and paid for Dianne's airplane tickets to attend John's funeral. Also, Edith deeded her residence in Peoria to Arnett on July 15, 1988.

After Edith died on March 23, 1989, Burdett and Nickerson as co-executors filed a small estate affidavit and inventory in the circuit court of Peoria County. Neither document listed the $75,000 as part of the estate. Dianne Arnett petitioned the court for an order declaring that the inter vivos gift of $75,000 from Edith Aimone to her daughters was in breach of the will contract contained in section 5 of her will and, hence, was void.

Burdett filed a motion to dismiss, and Arnett filed a motion for summary judgment. The trial court denied Burdett's motion to dismiss and also denied Burdett's subsequent motion to continue the hearing...