Moran's Estate, In re

• Decision Date: 02 October 1979
• Docket Number: No. 51703,51703
• Parties: , 32 Ill.Dec. 349 In re ESTATE of Bertha MORAN (Waynette SCHNEBERGER, Adm'r, Appellant, v. Owen M. MORAN, Adm'r, Appellee).
• Court: Illinois Supreme Court

Page 579

395 N.E.2d 579

77 Ill.2d 147, 32 Ill.Dec. 349

In re ESTATE of Bertha MORAN (Waynette SCHNEBERGER, Adm'r, Appellant, v. Owen M. MORAN, Adm'r, Appellee).

No. 51703.

Supreme Court of Illinois.

Oct. 2, 1979.

Adamowski, Newey & Adamowski, Chicago (Frank C. Stanley, Jr., Chicago, of counsel), for appellant.

Sidley & Austin, Chicago (John C. Williams, Arlene C. Erlebacher, and Kathryn E. Korn, Chicago, of counsel), for appellee.

MORAN, Justice:

The issue in this case is whether there was "sufficient evidence" under the Illinois version (Ill.Rev.Stat.1975, ch. 3, pars. 41a through 41g) of the Uniform Simultaneous Death Act to show that one of two persons who died from carbon monoxide poisoning survived the other.

On November 12, 1975, Bertha J. Moran and her son, Ronald W. Moran, died as the result of carbon monoxide poisoning while sitting in a parked car which was left running in an enclosed garage. On December 18, 1975, after proceedings to probate Bertha's estate, the circuit court of Cook County entered an order declaring that Bertha's only surviving heirs at law were Jane M. Traeger, her daughter, and Owen A. Moran and Roger F. Moran, her other sons. Following the resignation of the executor of Bertha's estate, the court appointed Owen A. Moran administrator De bonis non with the will annexed. Waynette Schneberger (petitioner), administrator of Ronald's estate, thereafter petitioned the court to amend the table of heirship to reflect that Ronald survived Bertha. On July 11, 1977, following a bench trial, the court granted the petition. On appeal by the respondents, Owen A. Moran (as both heir and administrator), Roger F. Moran, and Jane M. Traeger, the appellate court reversed and remanded with directions to modify the order to conform with the original table of heirship. (67 Ill.App.3d 576, 24 Ill.Dec. 312, 385 N.E.2d 79.) We granted the petitioner leave to appeal.

The Illinois version of the Uniform Simultaneous Death Act provides in pertinent part as follows:

"Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this Article." (Ill.Rev.Stat.1975, ch. 3, par. 41a.)

We note initially that none of the exceptions to which the foregoing provision refers is applicable here; therefore, the operative portion of the provision controls the resolution of this case. What constitutes "sufficient evidence" under the foregoing provision has never been addressed by this court. Other jurisdictions, however, as well as the Illinois appellate court, have passed upon this phrase, and are in substantial conformity as to its meaning and effect. In view of the directive that "(t)his Article shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact similar statutes" (Ill.Rev.Stat.1975, ch. 3, par. 41g), particular weight is to be given to the decisions of these courts. The decisions provide several well-established rules to be followed in deciding the issue at hand.

The Act is not a rule of evidence, as such, but one of substantive law that governs the devolution of property under certain circumstances. (Brundige v. Alexander (Tenn.1976), 547 S.W.2d 232, 234; In re Cruson's Estate (1950), 189 Or. 537, 554, 221 P.2d 892, 899.) When the evidence fails to disclose that one of the persons survived the other, and the operative portion of the Act is applicable, the Act controls the manner in which the property of both persons is to be disposed. The burden is on the party whose claim is dependent upon survivorship to prove the order of death by a preponderance of the evidence, the same degree of proof as is required in other civil cases. Smith v. Smith (1972), 361 Mass. 733, 736, 282 N.E.2d 412, 414; In re Estate of Schmidt (1968), 261 Cal.App.2d 262, 270, 67 Cal.Rptr. 847, 852; United Trust Co. v. Pyke (1967), 199 Kan. 1, 8, 427 P.2d 67, 73; In re Cruson's Estate (1950), 189 Or. 537, 562, 221 P.2d 892, 902; Sauers v. Stolz (1950), 121 Colo. 456, 458, 218 P.2d 741, 742; Prudential Insurance Co. v. Spain (1950), 339 Ill.App. 476, 482, 90 N.E.2d 256, cited with approval in In re Estate of Adams (1952), 348 Ill.App. 115, 121, and In re Estate of Lowrance (1978), 66 Ill.App.3d 159, 160, 22 Ill.Dec. 895, 383 N.E. 703.

Direct or circumstantial evidence may properly be used to prove survivorship. (Smith v. Smith (1972), 361 Mass. 733, 736, 282 N.E.2d 412, 414; United Trust Co. v. Pyke (1967), 199 Kan. 1, 8, 427 P.2d 67, 72-73; In re Estate of Schmidt (1968), 261 Cal.App. 262, 67 Cal.Rptr. 847, 852; see Sahn v. Muscarello (1948), 336 Ill.App. 188, 194-95.) At common law, however, there is no presumption of survivorship based upon age, sex, or condition of health. (Modern Woodmen of America v. Parido (1929), 335 Ill. 239, 243, 167 N.E. 52; Middeke v. Balder (1902), 198 Ill. 590, 594, 64 N.E. 1002; Brundige v. Alexander (Tenn.1976), 547 S.W.2d 232, 234; 1 Jones, Evidence sec. 3.89, [77 Ill.2d 151] at 315-16 (6th ed. 1972).) Because the Act did not change the rules of evidence (Prudential Insurance Co. v. Spain (1950), 339 Ill.App. 476, 482, 90 N.E.2d 256), the same rule no presumption of survivorship holds true under the Act. See Smith v. Smith (1972), 361 Mass. 733, 736, 282 N.E.2d 412, 414; In re Bucci's Will (Sur.Ct.1968), 57 Misc.2d 1001, 293 N.Y.S.2d 994, 996; In re Di Bella's Estate (Sur.Ct.1953), 125 N.Y.S.2d 755, 757.

The quality of evidence needed to prove priority of death, or survivorship, may be gleaned from a review of the evidence in several cases in which one of the deceased persons was found to have survived the other. Direct evidence was presented to satisfactorily establish survivorship in In re Estate of Schmidt (1968), 261 Cal.App.2d 262, 67 Cal.Rptr. 847 (survivor was breathing, gasping and moaning and had extensive bleeding from the ears); In re Estates of Davenport (1958), 79 Idaho 548, 323 P.2d 611 (survivor was breathing and bleeding from the nose); Sauers v. Stolz (1950), 121 Colo. 456, 218 P.2d 741 (survivor had slight heart beat and was spurting blood from his head); and Prudential Insurance Co. v. Spain (1950), 339 Ill.App. 476, 90 N.E.2d 256, (survivor groaned, moved her head, and had a slight pulse). Cases in which circumstantial evidence was held sufficient to establish survivorship include In re Bucci's Will (Surr.1968), 57 Misc.2d 1001, 293 N.Y.S.2d 994 (following airplane crash, survivor's brain was intact and her blood contained carbon monoxide which could only have entered by inhaling such gas generated by a gasoline fire which occurred after the crash, while other deceased sustained massive head injuries and had no carbon monoxide in his blood); and United Trust Co. v. Pyke (1967), 199 Kan. 1, 427 P.2d 67 (survivor shot another in the head five times, with any one of the five shots capable of causing death almost instantaneously, before shooting himself once).

The evidence of record in the case at bar...