Gabbett v. Ray

817 N.E.2d 924, 352 Ill. App. 3d 900, 288 Ill. Dec. 274, 2004 Ill. App. LEXIS 1367
CourtAppellate Court of Illinois
DecidedSeptember 2, 2004
DocketNo. 4-04-0093
StatusPublished
Cited by1 cases

This text of 817 N.E.2d 924 (Gabbett v. Ray) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gabbett v. Ray, 817 N.E.2d 924, 352 Ill. App. 3d 900, 288 Ill. Dec. 274, 2004 Ill. App. LEXIS 1367 (Ill. Ct. App. 2004).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

On November 17, 2002, Richard W. Gabbett died testate, leaving behind approximately 220 acres of land located in Mississippi Township, Jersey County, Illinois. Gabbett’s will named Robert L. Ray, his nephew, and W. Thomas Ryder as coexecutors of the estate. On August 6, 2003, Judith K. Landers, Gabbett’s daughter, filed a petition asking the trial court to direct Ray and Ryder to distribute “Gabbett Land Trust Beneficial Interests” and referencing the land located in Mississippi Township, Jersey County, Illinois. On January 12, 2004, the court denied Lander’s petition, finding “decedent died being the true record title owner of the real estate.” Landers appeals, arguing that the court erred by finding Gabbett did not “effectively” convey the property into a land trust. We affirm.

Gabbett’s will, dated December 1, 1982, contained the following bequest to Ray:

“I make the following specific bequests:
1.1 give the real estate that I own in Mississippi Township, Jersey County, Illinois plus all farm machinery, farm livestock, growing or stored grain, and all farm tools to my nephew, ROBERT L. RAY. ROBERT L. RAY has worked on the farm with me in recent years and I know that he will continue to operate the farm after my death. This gift is made in appreciation of his help and kindness to me.”

Gabbett left the residue of his estate to his daughters, Landers and Joanne M. Ringhausen.

On December 2, 2002, the trial court appointed Ray and Ryder as coexecutors of Gabbett’s estate and ordered them to file an inventory within 60 days. On March 12, 2003, Ray and Ryder filed an inventory “of the real and personal estate of the decedent.” On June 5, 2003, Ryder filed a petition seeking “court direction.” Ryder stated he had “received information of the existence of certain documents relating to a Land Trust involving the Farm Property in a file of Attorney Gail Gisy’s being held at Attorney George P Wittman’s Office.” Ryder reviewed the contents of the file held by Wittman. Ryder found “an original signed Land Trust Agreement, an original signed, but unrecorded Quit Claim Deed, and other documents.” Ryder attached copies of the documents to his petition.

On August 6, 2003, Landers filed a petition asking the trial court to direct Ray and Ryder to distribute “Gabbett Land Trust Beneficial Interests,” asserting that the “beneficial interests” were “personal property and *** pass under the residuary provisions of the decedent’s will.”

The record shows the following. On November 21, 1979, Gabbett appeared in Gisy’s law office and signed multiple documents. A document titled “DEED IN TRUST” purported to transfer the land located in Mississippi Township, Jersey County, Illinois, into “the GABBETT LAND TRUST” via quitclaim deed. The document identified Gabbett as the grantor and the trustee “under the provisions of a TRUST AGREEMENT” dated November 21, 1979. The deed was not recorded.

The “TRUST AGREEMENT” also identified Gabbett as trustee and as sole beneficiary. In addition, the agreement provided that “the total number of shares in said trust shall consist of 5720 shares.”

Gabbett signed four trust certificates and two “ASSIGNMENT OF INTEREST IN LAND TRUST” documents. The documents identified Gabbett as the owner of “5720 shares in certain property in said Land Trust.” Gabbett assigned three shares to each of his daughters. Following Gabbett’s death, Ryder “received information” of the existence of the various documents located in a file in Wittman’s law office.

On January 1, 1980, Gabbett appeared in Ryder’s law office and entered into a “JOINT VENTURE AGREEMENT” with Ray to “carry on, as joint venturers, a livestock and grain farming operation for profit.” The agreement identified Gabbett as “the owner of 220 acres located in Section 10, Mississippi Township, Jersey County, Illinois.” Further, the agreement recited that “[ljegal title to the real estate *** acquired prior to the date of this agreement *** shall remain in [the] name of Richard W Gabbett.”

The record shows three additional trust certificates and two additional “ASSIGNMENT OF INTEREST IN LAND TRUST” documents signed by Gabbett on December 16, 1980. Gabbett assigned three additional shares “in certain property in said Land Trust” to each of his daughters. These documents were also found in the file held by Wittman.

On September 1, 1982, Gabbett signed his will, giving “the real estate that I own in Mississippi Township, Jersey County, Illinois,” to Ray.

After November 21, 1979, Gabbett continued to file his own individual income tax returns and did not file fiduciary income tax returns as trustee.

Following a hearing, the trial court denied Lander’s petition, stating:

“The property was never treated by the decedent as being held in trust. He never filed fiduciary income tax returns. There is no evidence he distributed income to the holders of beneficial interests. It is further evidenced by his recitals in the joint venture agreement and in his last will that he, and not the trust, was the owner of the real estate.”

The court found “decedent died being the true record title owner of the real estate.”

This appeal followed.

Landers argues that the trial court erred by concluding that Gabbett died “being the true record title owner of the real estate.” Specifically, she challenges the court’s conclusion that Gabbett did not “effectively” convey the property into a land trust.

A conveyance of real property does not occur merely through the execution of a deed. The grantor must also deliver the deed, and the grantee must accept it. Seibert v. Seibert, 379 Ill. 470, 477-78, 41 N.E.2d 544, 547 (1942); In re Estate of Wittmond, 314 Ill. App. 3d 720, 724, 732 N.E.2d 659, 662 (2000). Delivery of a deed is essential to complete a conveyance, and although no particular method of delivery is required (McClugage v. Taylor, 352 Ill. 550, 557, 186 N.E. 145, 148 (1933)), the grantee must affirmatively show that the grantor’s words or conduct evinced an intent to pass title at the time of the purported delivery (Foster v. Foster, 273 Ill. App. 3d 106, 110, 652 N.E.2d 350, 353 (1995), citing Seibert, 379 Ill. at 478, 41 N.E.2d at 547).

“[P]lacing a deed in the hands of a grantee does not constitute delivery where it is shown the intention of the parties was that it was not to become operative immediately and where such intention is evidenced by continued acts of ownership and operation.” Seibert, 379 Ill. at 478, 41 N.E.2d at 547.

Citing Whittaker v. Stables, 339 Ill. App. 3d 943, 791 N.E.2d 588 (2003), Landers contends she need not provide evidence of delivery because the various instruments named Gabbett as sole grantor and sole grantee.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Marriage of Mast
2022 IL App (4th) 210363-U (Appellate Court of Illinois, 2022)

Cite This Page — Counsel Stack

Bluebook (online)
817 N.E.2d 924, 352 Ill. App. 3d 900, 288 Ill. Dec. 274, 2004 Ill. App. LEXIS 1367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gabbett-v-ray-illappct-2004.