Trusts; Wills

In re Estate of Wittmond, 314 Ill App 3d 720, 732 NE2d 659, 247 Ill Dec 337 (4th D 2000).

Facts: In a will executed in 1984, Wittmond (decedent) bequeathed a certain sum and "[a] farm in Pike County... together with all of the chattels thereon" to Stewart, his long-time companion. Decedent left most of the residue of a substantial estate to Burch, his nephew. Upon decedent's death, Burch was appointed executor. Stewart then filed a petition asking the trial court to direct Burch to convey the farm and associated chattels to her. Burch filed a response asserting that the farm was not estate property, and produced an unrecorded deed purporting to convey the farm to a land trust which decedent had created in 1992. The trial court held that the decedent had adeemed his bequest of the farm and chattels to Stewart when he later conveyed the same into the land trust. Stewart appealed.

Holding: Reversed. While the unrecorded deed was validly executed, it was never delivered to the trustee (Carrollton Bank and Trust) but was instead placed in a safe deposit box at another bank. It is well-settled that a conveyance of real property requires both a validly executed deed and delivery thereof. While no particular method of delivery is required, the grantee must show that the grantor's words or conduct evinced an intent to pass title. Burch argued that he need not have provided evidence of delivery where (1) the deed was in the physical possession of the grantee (Burch was a principal beneficiary of the land trust); or (2) the grantee is a close member of the grantor's family. The appellate court rejected these arguments, noting that the unreported deed provided that "the interest of each beneficiary under the trust... [is] to be personal property, and no beneficiary shall have any title or interest, legal or equitable, in or to the real estate as such...." The appellate court observed that Illinois courts do not merely honor such provisions, but hold them essential to creation of a valid land trust. Unlike other trusts, the sole function of a trustee in a land trust is to take and hold title to the trust res. To permit a beneficiary to perform that function on behalf of the trust would completely eviscerate the trust. Furthermore, whether the deed was in the possession of a beneficiary or some other third party, the court requires additional proof of the settlor's intent to deliver the deed to the trustee. Here, Burch testified that the decedent's only instruction was that the deed not be recorded.

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