concurring in part and dissenting in part:
I agree with the determination of the majority that the portion of the judgment finding the remainder interest in the real estate to be in the defendant should be affirmed. I would reverse the portion of the judgment which finds her to also be entitled to the funds in the joint tenancy bank account.
I do not dispute that the decedent’s retention of the right to withdraw the funds from the account did not, of itself, negate an inter vivos donative intent on her part to make a gift to defendant. Her agreement with defendant, however, was that defendant had no right to withdraw funds from the account during decedent’s life. In Montgomery v. Michaels (1973), 54 Ill. 2d 532, 301 N.E.2d 465, the Supreme Court ruled as a matter of law that the creation of a “Totten Trust” by one spouse did not create a sufficient inter vivos transfer of funds to defeat the same statutory rights of a surviving spouse as are involved here. That court stated:
“In the case at bar the settlor was also the trustee. During her lifetime she retained absolute, unqualified control over the bank accounts, and possessed and exercised all incidents of complete ownership, including the right to receive interest payable thereon and withdraw the principal thereof. The enjoyment of the proceeds of the accounts by the beneficiary or beneficiaries named therein would arise only upon the death of the settlor-trustee with the accounts remaining intact.” 54 Ill. 2d 532, 536, 301 N.E.2d 465, 467.
Here we are concerned with a joint tenancy bank account rather than a trust account. I am aware of the statement in Toman v. Svoboda and other appellate opinions that say that the Montgomery v. Michaels doctrine has no application to joint tenancy accounts. Neither this court nor the supreme court has so stated, however, and no case has been called to my attention from any of the appellate districts ruling upon the unusual situation of this case where the decedent had not only the ability to withdraw all funds prior to her death but also the sole beneficial use of the funds during her lifetime. Under these circumstances, as in Montgomery, the defendant’s “enjoyment of the proceeds” arose “only upon the death” of the decedent “with the accounts remaining intact.” I can see no logical reason why the inter vivos donative intention of the decedent is not negated in this case just as it was in Montgomery.
I would affirm the portion of the judgment finding the real estate to be in defendant but would reverse the portion of the judgment finding her to be also entitled to the proceeds of the joint tenancy bank account and remand the case ordering that the judgment be modified to find the bank account to be an asset of the estate.