Gardner v. Trevaskis

KAUFMAN, P. J.

Appeal from an order vacating and setting aside judgment and orders to refund certain moneys paid pursuant thereto.

This controversy centers around the claims of the several parties to all or a portion of the sum of $10,657 on deposit with the American Trust Company, in a savings account No. 8441, in the name of “Henry J. Kleefisch, Trustee.’’

Henry J. Kleefisch, an attorney-at-law with numerous clients, died testate on March 13, 1955. His estate was insolvent and his accounts, records and affairs were in a state of confusion. The appellant Don Trevaskis qualified as the executor of the Kleefisch estate. Numerous creditors’ claims against the estate were filed, including those of the appellant and the respondents.

On September 2, 1955, appellant Gardner filed an action against the American Trust Company and the appellant Trevaskis as executor of the Kleefisch estate, claiming that a trust existed in her favor as to $6,676.75 of the funds on deposit in savings account Number 8441. Her complaint contained no allegation tracing her money into the account but stated only that the appellant, in 1943, had given the sum in question to Kleefisch to invest for her benefit, and that Kleefisch had acknowledged receipt of the same in writing. Appellant Trevaskis admitted nearly all of the allegations in the complaint,

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offered no evidence at the trial, waived cross-examination and findings. On January 20, 1956, a judgment was rendered in favor of appellant Gardner decreeing a trust in her favor in the amount of $6,676.75. This sum had been previously deposited into court by the American Trust Company, which was thereupon dismissed from the action.

In October 1954, on filing a $30,000 bond of respondent Ohio Casualty Company, Kleefisch had qualified as the executor of the estate of his client Helen Haskell Shay, who died in September, 1954. After the death of Kleefisch, E. A. Winstanley was appointed executor of the Shay estate. On filing his claim against the estate of Kleefisch, Winstanley was told that Kleefisch’s business records were missing and that there was no possibility of ascertaining the source of the funds in the savings account. Upon learning of the judgment in favor of appellant Gardner, Winstanley began to investigate the source of the money in savings account Number 8441. It appeared that the account in question was opened in February 1954, with two checks totaling $46,318.38. These cheeks were payable to Helen Haskell Shay and represented the final payment on a sale of Illinois real estate which Kleefisch had negotiated for Mrs. Shay. The checks were endorsed “Helen Haskell Shay, by H. J. Kleefisch.” No other deposits were made to the account except the accrued interest. At some time after the opening of the account and before his death, Kleefisch transferred $35,993.38 from the savings account Number 8441 to his commercial trustee account at the same bank, in which there was on deposit, at the time of his death, a balance of $159. Thereafter, on July 19, 1956, Winstanley filed a motion to vacate and set aside the judgment in favor of appellant Gardner and for orders to refund the amount paid and permitting a complaint in intervention, on grounds of surprise and fraud. At the same time respondent Wyatt filed similar motions on her own behalf and that of other creditors of the Kleefisch estate. Respondent Wyatt’s motion is based on a document signed by Kleefisch in December 1953, similar to that on which appellant Gardner bases her claim, as well as certain cheeks and drafts. Appellant Gardner, on the basis of the affidavit of Trevaskis, moved to quash the service of both respondents’ motions and to strike papers relating to the same from the record. After receiving testimony and affidavits, the court denied appellant Gardner’s motions and granted respondents’ motions to set aside the judgment and permitting complaints in intervention, stating