dissenting:
I respectfully dissent from the conclusion of my colleagues that there was insufficient clear and convincing evidence that decedent Duncan did not intend to make gifts when he established the savings accounts in joint tenancy in the names of the two daughters. Under the facts and circumstances in this case, the majority would actually be seeking to substitute its analysis and its conclusions with respect to the evidence, contrary to the findings of the trial court, which must be accepted on appeal, unless contrary to the manifest weight of the evidence. The trial court saw and heard the witnesses testify. Although the evidence with respect to decedent Duncan’s intent was conflicting, on the basis of the record it is clear that the trial court properly determined that Duncan did not intend to give the savings accounts to his two daughters at the time the accounts were established, since he, personally, maintained control thereafter.
Respondent Harmon’s credibility was damaged by the conflict within her own testimony. First, she testified that decedent had told her the accounts were to go to the survivor of Harmon and Dowell. Later, respondent Harmon testified that the decedent had established the joint accounts so that she and petitioner would get the money upon decedent’s death. As the trial court pointed out, even if respondent Harmon’s testimony, that decedent wanted the daughters to have the money after his death, were true, it would not have shown a present donative intent at the time the accounts were established. It would, at most, show an attempt by decedent to make a testamentary transfer without complying with the statute of wills formalities. The trial court was convinced by the testimony in the record that there was no intention at the time of the establishing of the accounts to give the proceeds in the accounts to the daughters at that time, nor was there a donative intent established. The trial court acknowledged that there was a conflict in the testimony, but stated that he chose to believe petitioner Dowell, partly because she testified against her pecuniary interest, while respondent was testifying in favor of her pecuniary interest.
Evidence indicating lack of donative intent was presented by petitioner’s testimony that decedent had said that the funds in the joint accounts were to be distributed equally among his five children at his death. In addition, on March 26, 1974, approximately half a year after his wife’s death and five months prior to the time he established the joint accounts, decedent made a will dividing all of his property equally among his five children. In addition, the two daughters and decedent Duncan did not treat the accounts as though they were owned in any respect by the two daughters. Rather, they treated the accounts as though decedent Duncan still owned them exclusively, with deposits and withdrawals being made solely at the direction of decedent Duncan. I do not believe that we, on appeal, can properly reject the evidence of lack of a donative intent on the part of the father.
In In re Estate of Eiberger (1978), 60 Ill. App. 3d 790, 793, 376 N.E.2d 793, 795, cited in the majority opinion, the trial court indicated specifically that there was evidence of a donative intent at the time the certificates were placed in joint tenancy with the decedent. In that case, the donor tried later to revoke the gift. That case, therefore, is distinguishable from the instant case. Here, the evidence established clearly, and the trial court found, there was no donative intent at the time the decedent established the two joint savings accounts. The majority confuses the accounts here with a situation where 'joint accounts are established naming both the father and the claimant. Here, two accounts are established only in the daughters’ names by the father, obviously for a particular purpose by their very nature, corroborating petitioner Dowell’s testimony. Why would the father establish two accounts in both daughters if he intended to make a gift of the accounts to the two daughters? There was no donative intent shown since he maintained control of the accounts after they were established, as shown by uncontradicted evidence. Is the majority correct in concluding that now Harmon has a one-half interest in the account in which Dowell maintained the passbook and which she testified is an asset of the estate, to be distributed equally to all five children of decedent, which is contrary to the pecuniary interest of Dowell?
We must first establish the nature of the accounts and the facts in the cause before us. Here a testator, who devised his property equally among his five children in his will, establishes accounts in the names of two daughters, whom he apparently trusted, and in which he placed *12,500 each. The accounts were specifically placed in the names of the two daughters in joint tenancy with the names alternating as to position.
If the testator had wanted to give each of the daughters *12,500, he obviously would have transferred the amount to the specific daughter, without the necessity of having a joint tenancy alternatively naming the two daughters as beneficiaries of those two accounts. It is apparent from the method by which these accounts were established that the testator had another purpose and presumably felt that he would be safe in trusting the daughters to carry out his directions. He may have intended, in this way, to avoid the expense of probate and still have an equal distribution to his five children. There was no effort to create a joint tenancy with himself as one of the parties with either daughter, but the arrangement was clearly designed to create a situation where the father thought that both daughters would be required to act as to disposition of the funds in the two accounts, after his death. The very nature of the accounts, and the method by which they were established and treated by the father thereafter, should be corroborative of an intent to do more than simply vest the amounts in the two daughters, as a gift to them, effective at that time.
The trial court found specifically that the two daughters were to make equal distribution among the five children despite the conflicting evidence from one of the daughters on this issue. Such findings of fact by the trial court, supported by credible evidence that is clear and convincing, should not be rejected on appeal, and we should not substitute our judgment or conclusions for the findings and judgment of the trial court which are not contrary to the manifest weight of the evidence.
The record supports the conclusion of the trial court to the effect that the joint savings accounts were not designed to be a gift at the time they were created by the father. This is apparent from the uncontradicted evidence as to how these accounts were treated by the parties and the father during his lifetime. Why the father used the particular vehicle of having the joint accounts established may not be clear, although he may have thought that this procedure would reduce the expense of probate. It is apparent from the record, however, that there was no donative intent to make a gift effective as of the time of the creation of the two joint accounts.
For the reasons stated, I would affirm the order of the Circuit Court of Whiteside County ordering respondent Harmon to pay to the executor of the estate of decedent Duncan the sum of *15,855.75.
I agree with the conclusion of the majority on the other issues raised and believe that the determination of the trial court in which the court ordered payment of *3,014, based on money which was asserted to have been in the wallet, and the portion of the order requiring payment of interest on the savings account, should be reversed.