Rasmussen v. LaMagdelaine

566 N.E.2d 864, 208 Ill. App. 3d 95, 153 Ill. Dec. 14, 1991 Ill. App. LEXIS 114
CourtAppellate Court of Illinois
DecidedJanuary 30, 1991
Docket2-90-0374
StatusPublished
Cited by7 cases

This text of 566 N.E.2d 864 (Rasmussen v. LaMagdelaine) 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
Rasmussen v. LaMagdelaine, 566 N.E.2d 864, 208 Ill. App. 3d 95, 153 Ill. Dec. 14, 1991 Ill. App. LEXIS 114 (Ill. Ct. App. 1991).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Alberta Rasmussen, appeals from the judgment of the circuit court granting a directed finding in favor of defendant, Nancy LaMagdelaine. Plaintiff contends that the trial court erred in directing a finding in favor of defendant at the close of plaintiffs case because defendant had the burden to prove that certain joint accounts were inter vivos gifts from plaintiff to defendant.

We will summarize only those facts relevant to the issue on appeal. Plaintiff filed a complaint alleging that defendant, her daughter, converted approximately $20,000 from plaintiffs checking accounts which, plaintiff alleged, were convenience accounts. The undisputed facts are as follows. In 1987, plaintiff, then 85 years old, owned her home in Lake Zurich, Illinois. She had a joint savings account with defendant at the First National Bank of Barrington (Barrington account) in the amount of $10,000. On November 7, 1987, plaintiff sold her house for $63,422.82 (sale proceeds). Defendant deposited the sale proceeds in a joint checking account at First Federal Savings and Loan Association in Rockford (First Federal account). Plaintiff moved into defendant’s home in Rockford.

On September 16, 1987, defendant closed the Barrington account and put the $10,000 into a certificate of deposit account in both plaintiff’s and defendant’s names. Plaintiff signed the signature card for the certificate of deposit account. On January 4, 1988, defendant cashed the certificate before its maturity date and received $9,978.98, which she kept for herself.

On November 9, 1987, plaintiff purchased a new automobile for defendant which was paid for by a check from the First Federal account. The check was signed by plaintiff. Plaintiff also signed the checks for the title and insurance for the automobile.

On November 11, 1987, defendant issued a check from the First Federal account payable to E.F. Hutton in the amount of $40,000. Of that amount, $30,000 was used to purchase securities in plaintiff’s and defendant’s names jointly, and the remaining $10,000 was used to purchase securities in defendant’s name only. Defendant subsequently sold the securities from the latter account for cash.

At the bench trial, plaintiff called defendant as an adverse witness. Defendant testified that before plaintiff sold her house, defendant stayed with plaintiff on the weekends. Plaintiff occasionally stayed at defendant’s house. Defendant cooked meals for plaintiff, but plaintiff paid for the groceries. Plaintiff helped defendant out with her mortgage payments when defendant was going to school. Plaintiff also reimbursed defendant for expenses defendant incurred when helping plaintiff.

Defendant further testified that plaintiff moved into defendant’s home after the sale of plaintiff’s house and plaintiff agreed to pay defendant $400 per month for room and board. Defendant stated that plaintiff signed the check for the purchase of the automobile because defendant “would not sign that -check.” According to defendant, plaintiff told defendant the money for the certificate was defendant’s, so plaintiff should not pay taxes for that account. Defendant stated that plaintiff told her to close the Barrington account and to move the money to Rockford, since plaintiff would not be living near Barrington. Defendant had student loans, which she paid off with the funds from the securities account.

Plaintiff testified that she had a checking and a savings account at the Barrington bank and that she did not authorize anyone to close the savings account. Plaintiff had approximately $10,000 in the account. She learned that the account had been closed when she went into the bank in January 1988 to withdraw some money from the account. Plaintiff was told that the account had been closed by defendant. At that time, plaintiff was unaware that defendant’s name was on the account.

Plaintiff testified that she deposited the sale proceeds into an account at First Federal. Plaintiff’s attorney asked her if the account was in the name of “Nancy LaMagdelaine and Alberta Rasmussen.” Plaintiff responded:

“[Nancy’s] name wasn’t on it, I don’t think.
***
That was my money.”

Plaintiff’s attorney again asked her if defendant was on the account, to which plaintiff answered:

“I don’t remember. Was it or wasn’t it? I don’t think it would have been. It shouldn’t have been.”

A third time, plaintiff was asked by her own attorney if defendant was on the First Federal account. Plaintiff said she was not. Plaintiff’s attorney then showed plaintiff a check from the First Federal account. The following colloquy then ensued:

“A. Her name is on it. This is First Federal? In Rockford?
Q. [Plaintiff’s attorney]: Of Rockford. Is her name on that account?
A. Yes, it was. But it isn’t on it now.
Q. No, no. We’re talking about now; we’re talking about then. When you brought this money to Rockford, it was put in First Federal, is that correct?
A. Yes.
Q. And it was put into an account which reads Nancy LaMagdelaine and Alberta Rasmussen, is that right?
A. Yes.
Q. So that she had control of this money, is that correct?
A. She wasn’t supposed to.
Q. Now, just answer my question.
A. Well, I guess she could have.”

Plaintiff further testified that she and defendant talked about investing some of the money from the sale of the house. Plaintiff did not go with defendant to E.F. Hutton when defendant went to purchase the stock. After plaintiff asked her attorney to investigate the closing of the Barrington account, plaintiff learned that defendant had used $10,000 of the money that was allocated for the stock to purchase her own stock.

Plaintiff denied that she ever promised to pay for defendant’s stuloans. Plaintiff stated that she gave defendant the automobile as a gift because defendant was driving plaintiff’s old automobile and it was not safe to drive. Plaintiff moved in with defendant in November 1987 and paid defendant $400 per month for room and board. Plaintiff signed two checks made out for that amount to defendant. Plaintiff also signed the checks for the purchase of the automobile and the insurance and title for it.

Plaintiff again testified that she did not authorize defendant to close the Barrington account, nor did she authorize defendant to take $10,000 from the proceeds of the sale of the house to put stock in defendant’s own name. Plaintiff’s only assets were the sale proceeds and the $10,000 in the Barrington account.

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Cite This Page — Counsel Stack

Bluebook (online)
566 N.E.2d 864, 208 Ill. App. 3d 95, 153 Ill. Dec. 14, 1991 Ill. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rasmussen-v-lamagdelaine-illappct-1991.