Kempski v. Hisgen (In re Antkowskis' Estates)

• Decision Date: 29 June 1936
• Docket Number: Gen. No. 38833.
• Citation: 286 Ill.App. 184,3 N.E.2d 132
• Parties: IN RE ANTKOWSKIS' ESTATES. KEMPSKI ET AL. v. HISGEN ET AL.
• Court: United States Appellate Court of Illinois

286 Ill.App. 184

3 N.E.2d 132

IN RE ANTKOWSKIS' ESTATES.KEMPSKI ET AL.

v.HISGEN ET AL.

Gen. No. 38833.

Appellate Court of Illinois, First District, First Division.

June 29, 1936.

Appeal from Circuit Court, Cook County; Daniel P. Trude, Judge.

Proceeding in the matter of the estates of Helen Antkowski, deceased, and Vaclov Antkowski, deceased, wherein Eloise Kempski and others caused a citation to be issued against Frederick J. Hisgen, Jr., and Maria B. Hisgen, administratrix of the estates of Helen Antkowski, deceased, and Vaclov Antkowski, deceased. From an adverse order, Eloise Kempski and others appeal to the circuit court of Cook county, and from an adverse judgment, Eloise Kempski and others appeal.

Affirmed.

Jacob Levy, of Chicago, for appellants.

Payton J. Tuohy, of Chicago, for appellees.

MATCHETT, Justice.

On March 15, 1926, Vaclov H. Antkowski, a resident of Cook county, Ill., died intestate in Chicago, leaving his wife, Helen, his only heir at law and next of kin. She was appointed administratrix of his estate, and thereafter on June 11, 1926, she suddenly passed away intestate, leaving as her only heirs at law and next of kin, Maria B. Hisgen, her sister, Joseph P. Kwiatkowski and Leon Kwiatkowski, her brothers, Eloise Kempski, her niece, and Henry Schryer, her nephew. Maria B. Hisgen was thereupon appointed administratrix de bonis non of the estate of Vaclov H. Antkowski and was also duly appointed administratrix of the estate of Helen Antkowski.

Vaclov Antkowski owned at the time of his death 26 shares of stock in the Westinghouse Electric Company, 25.02 shares of the common stock of the Sinclair Oil Company, and had a savings account in the First Trust & Savings Bank of Chicago, evidenced by a bank book No. 341819 of that bank, which showed a credit on January 8, 1926, of $1,000.14. The shares of stock were evidenced by certificates issued in the name of Vaclov Antkowski, and these certificates, together with the savings bank book, passed into the possession of Helen Antkowski, administratrix, who took legal title thereto, and being the only heir at law and next of kin and no debts having been proved against the estate, she became the owner thereof. Helen Antkowski was also the owner of 25 shares of common stock of Libby, McNeill & Libby, evidenced by a certificate issued to her in her name. These items of property are the subject-matter of this litigation. The certificates of stock are not indorsed, and neither these nor the bank account have been transferred by any purported written assignment. This property is in possession of the respondent, Frederick J. Hisgen, Jr., who claims that he became the owner thereof on or about April 15, 1926, at which time, he avers, Helen Antkowski, his aunt, delivered each and all of these items of property to him, stating that she was making a gift of them to him. This proceeding was begun in the probate court when petitioners, heirs at law, and next of kin caused a citation to be issued against him and the administratrix, his mother, pursuant to the provisions of sections 81 and 82 of the Administration Act (Smith-Hurd Ann.St. c. 3, §§ 82, 83; Ill.Rev.Stats.1935, p. 57, c. 3, pars. 82, 83). After hearing the evidence the probate court entered an order finding that respondent was the owner of each and all these items of property by gift from Helen Antkowski. Petitioners appealed to the circuit court of Cook county where the issue of ownership was submitted to a jury which returned a verdict in favor of respondent, and the court, overruling the motion of petitioners for a new trial, entered judgment in accordance with the verdict, which petitioners seek by this appeal to reverse.

It is contended in the first place, that respondent, Frederick J. Hisgen, Jr., failed to establish his claim by that clear and convincing proof required to establish a gift. The law is well settled that such evidence is necessary in order to establish a gift of property inter vivos. First Trust & Savings Bank v. Austin, 243 Ill.App. 386;Rothwell v. Taylor, 303 Ill. 226, 135 N.E. 419;Bolton v. Bolton, 306 Ill. 473, 138 N.E. 158. As already stated, the evidence here shows that respondent was the nephew of deceased; that he showed kindness to Mrs. Antkowski in many ways after the death of her husband; that prior to May 1, 1926, Mrs. Antkowski lived on Argyle street, on the North side of Chicago; that about that time she moved to 6009 Rhodes avenue, the South side of Chicago, which was very near to the home of respondent, who lived with his mother, Maria Hisgen, at 5747 Michigan avenue; that respondent visited his aunt very often, and that she relied upon him in many of her matters. The evidence shows that Mrs. Antkowski kept a safety deposit box in the Ashland State bank, but the undisputed evidence shows that this property was not in that box at the time of her death. The evidence tends to show that about May 15th, at the home of respondent's mother and in the presence of several witnesses, Mrs. Antkowski handed to respondent a package wrapped in brown paper which contained the certificates for these stocks and this bank book, and, as Maria Hisgen testifies, she at that time said, “Fred, I give you this.”

Mrs. Cowan, neighbor and friend of these people, says she remembers the occasion when Mrs. Antkowski rang the Hisgen's doorbell and, as they were not then at home, she then rang the doorbell of witness's home, and witness invited her to come in and wait, which she did. Mrs. Cowan says that Mrs. Antkowski had a package with her and told witness that she had been very blue since she lost her husband, and that she wanted Fred Hisgen to have everything she owned; that in a short time Hisgen and his mother returned and Mrs. Antkowski went to their apartment, the witness following her; that when she came in, Mrs. Hisgen, Fred Hisgen, and Maria Hisgen were there, sitting at the kitchen table, drinking coffee; that Mrs. Antkowski handed Fred a package, and said, “I want you to have this,” and she said, “Yes, I give this to you.” The witness says there were some papers in the bundle which looked like mortgages, or something. She says that she talked with Mrs. Antkowski two weeks before this time and she then told witness she wanted her nephew Fred to have everything she had, so that he would look after his mother and his sister. She says Mrs. Antkowski talked often with her; that she heard Mrs. Antkowski repeatedly say she wanted Fred to have everything she had. The witness admits that she is very friendly with the Hisgens. She thinks that on the occasion in question she stayed in Hisgen's apartment about a half hour.

Asked to give the exact words Mrs. Antkowski used, the witness replied, “She said, ‘Fred, I want you to have this' ”; that Fred then opened the package, which was about 8 inches long and 4, 5, or 6 inches wide, wrapped in brown paper, and a bank book fell out; that he looked at it, and Mrs. Antkowski said, “Fred, these are yours.”

Maria Hisgen testified that she was present when her aunt Helen handed her brother a package and said, “Fred, I give you this, and I want you to take care of your little sister and your mother.” She says that Fred opened the package; that she watched him and remembers there were certificates of stocks and a bank book in it; she describes in detail the particular shares of stock; she says the parties present stayed in the kitchen quite awhile and then had dinner; that her brother took the package and went out of the room; she also says that her aunt said to her brother prior to this time, “I want you to have everything.”

James Poling, who had been a specialist in the purchase of oil station sites for the Standard Oil Company and at the time of testifying was an assistant to the director of finance at Springfield, says that in May, 1926, he was checking real estate at Forty-Seventh street and Whipple avenue and found the property was owned by Vaclov Antkowski, who lived on Argyle street; that he wrote a letter to him and found that he had died and the wife lived at Sixtieth and Rhodes avenue; that he called there and talked with Mrs. Antkowski about the middle or third week of May, 1926; that he asked her if the Forty-Seventh street property was for sale, and she told him that she no longer owned that piece of property, and that she had given all her property to Fred Hisgen, her nephew, who lived on Michigan boulevard near Fifty-Eighth street; that the witness did not know Fred Hisgen at that time and had no transactions either with him or with Mrs. Helen Antkowski.

Petitioners undertake to discredit all this evidence by pointing out circumstances which it is claimed render it improbable, and proved facts inconsistent therewith. As to Poling's testimony, it is pointed out that the uncontradicted evidence is that Helen Antkowski had not given her real estate to respondent but, on the contrary, held the title thereto until she died, after which it was partitioned by the heirs. They point out that Poling's evidence, as well as other evidence, is in the nature of oral admissions, which are to be received with caution, and, moreover, that the statements related by Poling are not inconsistent with the theory that decedent gave the property to respondent, not as owner, but as her agent. They also make much of the fact that for years respondent made no effort to secure a conveyance of the stock certificates upon the books of the respective corporations, or to have the account represented by the bank book transferred into his own name. When asked upon examination why he had not presented the account book to the bank, respondent said, “I did not because I have no authority”; that he intended to do this when he should have “lawful possession.” Petitioners also point out inconsistencies and contradictions in the testimony of the witnesses as to the order of events and circumstances at the time of the alleged gift of the property to respondent....