Wasleff v. Dever, 1-87-2026

• Decision Date: 22 January 1990
• Docket Number: No. 1-87-2026,1-87-2026
• Citation: 141 Ill.Dec. 86,194 Ill.App.3d 147,550 N.E.2d 1132
• Court: United States Appellate Court of Illinois
• Parties: , 141 Ill.Dec. 86 Alex WASLEFF, Jr., as Executor of the Estate of Alex Wasleff, Sr., Deceased, Plaintiff-Appellant, v. Astairre M. DEVER, and Continental Illinois National Bank and Trust Company of Chicago, A National Banking Association, Defendants-Appellees.

Page 1132

550 N.E.2d 1132

194 Ill.App.3d 147, 141 Ill.Dec. 86

Alex WASLEFF, Jr., as Executor of the Estate of Alex Wasleff, Sr., Deceased, Plaintiff-Appellant, v. Astairre M. DEVER, and Continental Illinois National Bank and Trust Company of Chicago, A National Banking Association, Defendants-Appellees.

No. 1-87-2026.

Appellate Court of Illinois First District, First Division.

Jan. 22, 1990.

Thomas E. Buess, Chicago, for plaintiff-appellant.

Law Offices of Jeffrey M. Marks, Chicago (Jeffrey M. Marks, of counsel), for Dever.

Hopkins & Sutter, Chicago (Paul K. Vickrey, of counsel), for Continental Ill. Nat. Bank and Trust Co. of Chicago.

Justice MANNING delivered the opinion of the court:

Plaintiff, Alex Wasleff, Jr., executor of the estate of Alex Wasleff, Sr., brought this action against his sister, Astairre Dever, and Continental Illinois Bank and Trust Company of Chicago ("Continental Bank"). This action arises out of a transaction whereby Continental Bank released $40,000 to Astairre Dever from a trust account of Alex Wasleff, Sr. Wasleff, Sr., filed this action on March 17, 1982. Claims against Patrick Dever, the Northern Trust Company and the Harris Trust & Savings Bank were resolved prior to trial. On October 19, 1982, Wasleff, Sr., died and his estate was substituted as the plaintiff in this action with Wasleff, Jr., as the executor, representing the estate. Items included in Wasleff, Sr.'s estate were listed in his will and identified in the inventory of the estate prepared by counsel after Wasleff, Sr.'s death. Although claims were listed against both of Wasleff, Sr.'s daughters, no claim was listed against Continental Bank. At the close of the plaintiff's case-in-chief, the trial court entered a directed finding for Astairre Dever. Subsequently, judgment was also entered in favor of Continental Bank. Plaintiff appeals the trial court's decisions.

On April 9, 1981, Astairre Dever withdrew $40,000 from a Totten Trust of Alex Wasleff, Sr., as trustee, opened for the benefit of Alex Wasleff, Jr. A similar account was opened at the Northern Trust Bank by Wasleff, Sr., as trustee, for the benefit of his daughter, Astairre Dever ("Astairre"). Matthew Cook, division director for Continental Bank, testified that the funds in both accounts were for the use of Wasleff, Sr., during his lifetime and upon his death were to insure to the benefit of the respective beneficiaries. Astairre and Wasleff, Jr., testified that while the signature card and agreement for the Totten Trust in issue contained only the signature of Wasleff, Sr., Wasleff, Sr.'s wife had handled all of his financial affairs until her death. They further testified that upon her death defendant, Astairre, began taking care of her father's financial concerns which included: (1) the payment of all of his living expenses; (2) maintaining custody of his checkbooks and passbooks to his personal bank accounts; (3) depositing money into his personal accounts; and (4) routinely signing her father's name to checks and withdrawals.

Astairre testified that in April 1981, the family business, Alex Wasleff Building Maintenance Company, of which Wasleff, Sr., was the principal shareholder, encountered financial difficulty and the business was threatened with a shut down by the Internal Revenue Service ("IRS") for outstanding federal tax obligations. Wasleff, Jr., served as the vice-president of the business and Astairre served as secretary-treasurer. In that capacity, she was responsible for the payment of business taxes and the withholding of tax deposits for the business. Astairre further testified that on April 9, 1981, upon instructions from Wasleff, Sr., she withdrew $37,000 from the Northern Trust Bank trust account and $40,000 from the Continental Bank trust account by signing her father's name to the withdrawal slips. The IRS had assessed a $300,000 family business tax indebtedness as a lien against Wasleff, Jr., and the purpose of the withdrawals was to pay the IRS $100,000 of the $300,000 due to reduce the family's tax indebtedness.

A manager at Continental Bank testified that the signature on the withdrawal slip did not match the signature on the trust account's signature card. Sally Churn, the Continental Bank employee who handled the transaction, testified that she made an unsuccessful attempt to reach Wasleff, Sr., by telephone in order to verify the withdrawal. She further testified that after Astairre explained that her father was elderly and could not conduct his business, and presented the passbook and proper identification, and since it was time to pay taxes, she released the money to Astairre in the form of a cashier's check payable to the IRS.

Wasleff, Jr., testified that he informed Wasleff, Sr., who was both physically and mentally infirm, that Astairre used the $40,000 from the Continental Bank account for her own personal use. Moreover, Wasleff, Sr., was never told before his death that the money was used to reduce the family's business debt. The business was actually closed by the IRS in July 1981.

During the trial, Astairre testified regarding her conversations with her father prior to his death concerning the withdrawals. Additionally, Astairre and other witnesses testified about other financial transactions that Astairre was involved in on behalf of the business. Wasleff, Jr., also testified during the trial regarding the content of two conversations held between himself and Wasleff, Sr., pertaining to the $40,000 withdrawal from the Continental Bank account. Audrey Hunter, his sister, was present during the first conversation and attorney Joseph O'Callanhan was present during the second conversation. Specifically, the following occurred:

"Q: What if anything, did your father say when you told him about the withdrawal.

A: He said no one was supposed to withdraw that money."

Wasleff, Jr., further testified that: (1) Astairre handled Wasleff, Sr.'s personal affairs; (2) she possessed passbooks and checkbooks to Wasleff, Sr.'s personal bank accounts that were given to her by Wasleff, Sr.; (3) Astairre made deposits into Wasleff, Sr.'s personal bank accounts; and (4) Wasleff, Sr., gave Astairre permission to sign his name to his personal checks.

On May 21, 1987, judgment was entered for Astairre. The trial court held that Astairre did not convert the funds received from Continental Bank, finding instead that Wasleff, Sr., either expressly or impliedly, authorized the transactions. On May 22, 1987, the trial court entered judgment for Continental Bank holding that Wasleff, Sr., authorized the withdrawal. In a detailed analysis the trial court discussed Astairre's express, implied or ratified authority and Wasleff, Sr.'s contribution to the withdrawal. The trial court further discussed the lack of damage suffered by the estate as a result of the withdrawal and the failure of the plaintiff to show that a valid claim of the Wasleff estate existed. Plaintiff appeals from these judgments.

We must first determine whether Wasleff, Sr.'s cause of action abated with his death. It should be noted that abatement of actions because of death is not favored by our supreme court. (See Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583.) Section 27-6 of the Probate Act of 1975 provides:

"Actions which survive. In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 6-21 of 'An Act relating to alcoholic liquors.' Ill.Rev.Stat.1987, ch. 110 1/2, par. 27-6.

It is well-established that the Illinois survival statute allows a decedent's representative to maintain those common law or statutory actions which had already accrued to the decedent prior to his death. (National Bank v. Norfolk & Western & Western Ry. Co. (1978), 73 Ill.2d 160, 172, 23 Ill.Dec. 48, 383 N.E.2d 919; Menerey v. Citizens First Nat'l Bank (1987), 160 Ill.App.3d 223, 225, 112 Ill.Dec. 139, 513 N.E.2d 553; Raisl v. Elwood Indus. Inc. (1985), 134 Ill.App.3d 170, 172, 89 Ill.Dec. 100, 479 N.E.2d 1106; Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill.App.3d 191, 196, 90 Ill.Dec. 797, 482 N.E.2d 1080.) Since Wasleff, Sr.'s claim is based on the alleged conversion of personal property, the claim survived his death, pursuant to the Illinois survival statute. Therefore, Wasleff, Jr., as the executor of the estate, was a proper party to bring this action.

Plaintiff initially argues on appeal that the Dead-Man's Act was violated when the trial court admitted into evidence conversations held between Astairre and Wasleff, Sr., regarding his authorization of the withdrawal of the $40,000 that were not witnessed. Plaintiff further argues that the Dead-Man's Act was violated when the trial court erroneously allowed Astairre to testify regarding conversations held with her father pertaining to the receipt and return of her father's personal passbooks and checkbooks. The plaintiff's arguments are without merit. The object of the Dead-Man's Act is fundamental fairness. (Vazirzadeh v. Kaminski (1987), 157 Ill.App.3d 638, 645, 110 Ill.Dec. 65, 510 N.E.2d 1096.) The Dead-Man's Act provides in pertinent part as follows:

"In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, 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 person under legal disability or to any event which took place in the presence of the deceased or person under legal disability, except in...