Pecoulas' Estate, In re

• Decision Date: 09 July 1968
• Docket Number: Gen. No. 52311
• Citation: Pecoulas' Estate, In re, 240 N.E.2d 311, 98 Ill.App.2d 440 (Ill. App. 1968)
• Parties: In re ESTATE of Peter D. PECOULAS, a/k/a Pericles D. Pecoulas, Deceased. Peter ANGELAKOS, Claimant-Appellee, v. John L. ALEX, as Administrator of the Estate of Peter D. Pecoulas, a/k/a Pericles D. Pecoulas, Administrator-Appellant.
• Court: Appellate Court of Illinois

Page 311

240 N.E.2d 311

98 Ill.App.2d 440

In re ESTATE of Peter D. PECOULAS, a/k/a Pericles D Pecoulas, Deceased Peter ANGELAKOS, Claimant-Appellee, v. John L. ALEX, as Administrator of the Estate of Peter D Pecoulas, a/k/a Pericles D. Pecoulas Administrator-Appellant.

Gen. No. 52311.

Appellate Court of Illinois, First District, Second Division.

July 9, 1968.

Peterson, Lowry, Rall, Barber & Ross, Peter G. Anagnost, Chicago, for administrator-appellant, Peter M. Sfikas, of counsel.

Elliott Kohn, Chicago, for claimant-appellee.

LYONS, Justice.

This is an appeal in a probate proceeding by respondent, John L. Alex, as administrator of the estate of Peter D. Pecoulas, deceased, from the entry of an order by the Circuit Court, after a full hearing on the evidence, allowing a claim in the decedent's estate in the amount of $1,500.00.

The cause of action on the debt as asserted below by petition was predicated upon certain alleged oral inter vivos loans made to the deceased by the petitioner-claimant, Peter Angelakos, which claim Angelakos purported to evidence by the production of three personal checks drawn in equal sums of $500.00 by the claimant to the order of the deceased and negotiated through blank endorsement by him (attached to petition as Claimant's Exhibit Nos. 1, 2 and 3). The case proceeded to a trial of the cause without objections to the pleadings of either party. The only questions raised by this appeal concern the propriety of the trial court's admission of the three checks into evidence over objection of respondent, and the sufficiency of the evidence to otherwise support the allowance of the claim.

The extent of the evidence offered by the claimant consisted entirely of the testimony of one William Kilstrom. It was initially elicited from the witness that he and the claimant worked together, and that the claimant was related by marriage to decedent's niece. Kilstrom testified that on July 7, 1964, he had occasion, at his place of employment, to witness a conversation between the claimant and the deceased which was spoken in a mixture of the Greek and English tongues. The witness admittedly possessed no knowledge or understanding of the Greek language. Kilstrom related that subsequent to this conversation the two principals walked off to one side, approximately 20 feet away, and he saw the claimant write something on a small piece of yellow paper about the size of a personal check and hand it over to the deceased. Without elaborating further as to the details of the ostensible transaction, Kilstrom added that he had witnessed similar occurrences on October 3, 1964 and November 10, 1964, which dates, as he correctly observed, corresponded exactly to the respective dates subscribed on the three aforementioned checks then marked as exhibits for identification.

On further direct examination, Kilstrom stated that he could not identify any of the signatures appearing on the respective exhibits, be they those of the maker or the payee by endorsement. Asked if he knew whether the deceased had, in fact, borrowed money from the claimant, the witness responded, 'I do not know, but Peter Angelakos told me he loaned money to Peter Pecoulas.' Respondent made no objection to this statement. It was at this juncture in the lower court proceedings that the three checks were accepted into evidence, over respondent's objection addressed to the absence of a foundation for their admission.

On cross-examination, Kilstrom conceded that he could not identify Claimant's Exhibit Nos. 1, 2 and 3. He explained that he had neither overheard any particular sums of money being discussed nor had an opportunity to observe any of the writings made on the slips of paper. The witness reaffirmed his previous testimony that the deceased had never acknowledged an indebtedness to Angelakos in his presence relative the events he had described. This was the extent of the evidence and testimony adduced at the trial.

It is manifest from the state of the record that the court below erred in admitting the three claimant's exhibits into evidence. The claimant endeavors to substantiate his position by reference to a suggested presumption favoring the authenticity of these documents, citing in addition the absence of any testimony by respondent to refute the genuineness of the signatures on the checks. By so doing, the claimant evidently chooses to ignore the distinction that his action is not one brought upon the checks as such, and otherwise governed by our Commercial Code (See Ill.Rev.Stat. (1965) Chap. 26, par. 3--307(1)(a), (b)), but rather is a claim of indebtedness independently founded upon an oral agreement/s as is allegedly evidenced by the...