Kamberos v. Magnuson
| Decision Date | 16 June 1987 |
| Docket Number | No. 86-1371,86-1371 |
| Parties | , 109 Ill.Dec. 491 A. Theodore KAMBEROS, As Independent Administrator of the Estate of Patricia M. Murray, Deceased, Plaintiff-Appellant, v. Ann MAGNUSON, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Joseph C. Owens, Joseph C. Owens, P.C., Chicago, for plaintiff-appellant.
William J. Harte, Ltd., Chicago, William J. Harte and Mary E. Rosen, for defendant-appellee.
This is an appeal from the granting of summary judgment in favor of defendant.
In May 1983, plaintiff, Mrs. Patricia Murray, filed suit against defendant, Ann Magnuson, seeking imposition of a constructive trust upon monies bequeathed to defendant allegedly for plaintiff's benefit by the will of John Abens, deceased. The claim for constructive trust is founded upon the allegation that defendant abused a confidential relationship she shared with Abens. Defendant filed a motion to dismiss which was denied.
Thereafter, on March 28, 1984, plaintiff Murray died. Her son-in-law, A. Theodore Kamberos, was appointed independent administrator of her estate and was substituted as party plaintiff in the place of Murray on November 7, 1984.
A motion for summary judgment was filed by defendant and discovery undertaken pursuant to a court order stating that the taking of depositions did not waive the application of the Dead Man's Act. (Ill.Rev.Stat.1985, ch. 110, par. 8-201.) Depositions of defendant Ann Magnuson and Nora Kamberos, daughter of Patricia Murray and wife of the independent administrator, were taken. Plaintiff filed responsive pleadings incorporating the discovery depositions. Defendant filed a reply attaching the same depositions. Summary judgment was entered in favor of defendant. Plaintiff appeals.
John Abens died in 1981, survived by his wife and their three children. Defendant Magnuson was the sister-in-law of Abens. She is also the co-executor and co-trustee of his estate. Abens' will has a specific bequest of $400,000 to Magnuson. Plaintiff is claiming the $400,000 seeking imposition of a constructive trust for her benefit on this bequest. The evidence upon which plaintiff relies to establish the constructive trust consists of certain conversations with the decedent during his lifetime. The trial court ruled that the Dead Man's Act barred evidence of the conversations with the decedent or acts in the presence of the decedent. This ruling effectively left the plaintiff without any admissible proof to support her theory.
The discovery depositions developed the following facts. During his lifetime, Abens requested that Magnuson take care of Mrs. Murray, his mistress, after his death. However, he never stated that Magnuson was to give the $400,000 legacy to Murray. Although the bequest to Magnuson was not conditioned on Magnuson taking care of Murray, Magnuson told Murray that she would be taken care of.
After Abens died, Magnuson gave Mrs. Murray $1,000 from her personal funds. Murray asked for more money but Magnuson refused until the estate was settled.
Patricia Murray was, until her death, married to James A. Murray. Patricia and James had six children. Mrs. Murray was the mistress of John Abens from 1968 or 1969 until his death in 1981 but never resided with him. She worked for Abens' company for approximately four years from 1968 through 1972, and then had a part-time job elsewhere from 1973 to 1979. Mrs. Murray left her family home in June or July of 1976 to reside in an apartment with two of her daughters. The application for the lease of the apartment was in the name of Ann Magnuson. For approximately one year in 1976, Magnuson paid the rent to the rental agent and was reimbursed by Abens. After that, she had no involvement in the lease or rent arrangements. Abens gave Murray gifts of clothing, jewelry, cars and money.
After Abens' death, Murray received money from her children and also lived on money she saved from funds given her by Abens during his lifetime. The estate of Abens is not settled.
Following the death of Abens, Patricia Murray did not file any claim nor institute any legal proceedings against his estate. After her death, her estate followed the same policy. The only action instituted regarding the relationship between Patricia Murray and John Abens is this proceeding against Ann Magnuson. Murray and Abens were survived by their respective spouses and children.
The estate of Patricia Murray claims a constructive trust in reliance on three separate conversations which took place between: (1) John Abens and Ann Magnuson; (2) John Abens and Patricia Murray; and (3) John Abens and Nora Kamberos.
In granting summary judgment in favor of defendant, the trial court found that the Dead Man's Act (Ill.Rev.Stat.1985, ch. 110, par. 8-201) applies in this case to bar the testimony of Ann Magnuson and Nora Kamberos regarding their conversations with Abens; that the conversations of Murray, Abens and Kamberos were inadmissible hearsay; and that although there is some evidence of a claim for support, this claim terminated at the death of Patricia Murray and is not material to the claim of constructive trust for the legacy by the administrator of the estate of Patricia Murray.
The issues presented for review are: (1) whether the Dead Man's Act applies to bar the testimony of Nora Kamberos and Ann Magnuson regarding their conversations with John Abens; and (2) whether there is a genuine issue of material fact on the issue of the failure of plaintiff to establish a claim for constructive trust against defendant.
The Dead Man's Act provides in pertinent part:
"In the trial of any action in which any party sues or defends as the representative of a deceased person * * *, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased * * * or to any event which took place in the presence of the deceased * * *."
Ill.Rev.Stat.1985, ch. 110, par. 8-201.
The principal purpose of the Dead Man's Act is protection of decedents' estates from fraudulent claims. (Mortimer v. Mortimer (1st Dist.1972), 6 Ill.App.3d 217, 221, 285 N.E.2d 542.) This purpose is accomplished by prohibiting a party to a civil action from testifying on his own motion or in his own behalf when the adverse party sues or defends as an executor, administrator, heir, legatee or devisee. (6 Ill.App.3d 217, 221, 285 N.E.2d 542.) In determining whether the statute applies, it is important to ascertain whether the action is brought or defended by a person in the capacity of personal representative, heir, legatee or devisee, or whether it involves or tends to impair the estate of a decedent. 6 Ill.App.3d 217, 221, 285 N.E.2d 542.
The conversations at issue here are those wherein Abens told Magnuson to take care of Murray and wherein Abens told Murray and Nora Kamberos that he was going to take care of Murray after his death. Plaintiff contends that the Dead Man's Act does not apply because Magnuson is being sued individually for the purpose of establishing an oral constructive trust for the benefit of Murray. This argument ignores the fact that the corpus of the alleged constructive trust will consist of the entire legacy to be received by Magnuson from the estate of Abens. It also ignores the fact that Magnuson is also a co-executor and co-trustee of the estate of the decedent.
Plaintiff is disputing the specific legacy of $400,000 to Magnuson. Magnuson is defending that legacy. Therefore, both Magnuson and Murray are barred from testifying on their "own behalf to any conversations with the deceased * * * or to any event which took place in the presence of the deceased * * *." ...
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