The opinion
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by Reporter of
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document
Appellate Court Date: 2021.03.01
13:47:05 -06'00'
In re Estate of Crawford, 2019 IL App (1st) 182703
Appellate Court In re ESTATE OF KEVIN CRAWFORD, Deceased (Wayne
Caption Crawford, Claimant-Appellant, v. Erwin Schmidt, Independent
Administrator, Respondent-Appellee).–In re ESTATE OF ANITA
CRAWFORD, Deceased (Wayne Crawford, Claimant-Appellant, v.
Erwin Schmidt, Independent Administrator, Respondent-Appellee).
District & No. First District, Fourth Division
Nos. 1-18-2703, 1-19-0113
Filed December 26, 2019
Decision Under Appeal from the Circuit Court of Cook County, Nos. 17-P-1680, 17-
Review P-1681; the Hon. Mary Ellen Coghlan, Judge, presiding
Judgment Affirmed.
Counsel on Adrian Vuckovich, of Collins Bargione & Vuckovich, of Chicago, and
Appeal Fredrick C. Cappetta, of Cappetta & Associates, Ltd., of Oak Brook,
for appellant.
Richard Lee Stavins and Diana H. Psarras, of Robbins, Salomon &
Patt, Ltd., of Chicago, for appellee.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Lampkin and Burke concurred in the judgment and opinion.
OPINION
¶1 The instant consolidated appeals arise from the denial of a claim filed by claimant Wayne
Crawford against the estates of decedents Kevin and Anita Crawford, claimant’s son and
daughter-in-law, after the two were killed in an automobile accident. Claimant filed a claim
against each estate, seeking reimbursement of $223,529.59 that he had paid to the decedents
over 12 years, claiming that the payments were loans. Respondent Erwin Schmidt, the
independent administrator of both estates and Anita Crawford’s father, filed a motion for
summary judgment with respect to each estate, claiming that the Dead-Man’s Act (735 ILCS
5/8-201 (West 2016)) meant that claimant could not establish that he had made any payments
to the decedents or that any payments were loans and not gifts. The probate court granted
summary judgment in respondent’s favor, denying claimant’s claim, and claimant appeals. For
the reasons set forth below, we affirm.
¶2 BACKGROUND
¶3 The record on appeal establishes that decedents Kevin and Anita Crawford were killed in
an automobile accident on February 16, 2017; Kevin was 52 years old, and Anita was 50 years
old at the time of the accident. Decedents had three children, one of whom was also killed in
the accident, and Anita’s parents were named as guardians of the other two children, both
minors. 1 Respondent is Anita’s father, and claimant is Kevin’s father.
¶4 On March 14, 2017, respondent filed petitions for letters of administration in both
decedents’ estates, and on April 10, 2017, the probate court appointed respondent as
independent administrator for both estates. On the same day, the probate court entered an order
finding decedents’ children to be their only heirs.
¶5 On August 4, 2017, claimant filed a claim against each estate, alleging that he had a claim
for $223,529.55 against each estate jointly and severally. In support, claimant alleged that,
beginning in 2005, decedents had financial burdens they were unable to satisfy and borrowed
funds from claimant from time to time, which they agreed to repay; claimant alleged that these
expenses typically included weekly groceries, utility bills, and payments on debts. Claimant
further alleged that these expenses included leasing decedents a vehicle for their use, which he
paid off after their deaths. Claimant alleged that he kept a contemporaneous log of the various
amounts and dates on which decedents requested funds but that “many incidents of borrowing
were not entered in the log.” Claimant alleged that he advanced decedents money from a home
equity line of credit on his home, from his checking account, and by cash and credit card.
¶6 In support of his claim, claimant attached (1) a three-page handwritten contemporaneous
log maintained by claimant, showing the date and amount of each disbursement, (2) a
spreadsheet summarizing the transactions detailed in the log, (3) statements from PNC Bank,
1
One of the children turned 18 during the pendency of the instant litigation, while the other is
currently 12 years old.
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showing checks paid from the home equity line of credit, (4) statements from US Bank,
showing checks disbursed to decedents from claimant’s checking account, (5) an unsigned,
unnotarized “affidavit” from claimant, containing the same allegations as included in the claim,
and (6) the lease documents for the vehicle leased by claimant.
¶7 On October 5, 2017, respondent filed an answer to claimant’s claim, in which he stated that
he “has no knowledge thereof sufficient to form a belief as to the truth of the allegations”
concerning claimant’s payment of money to decedents.
¶8 On December 8, 2017, respondent filed a petition to partially settle a wrongful-death cause
of action against the person who caused decedents’ death, which the probate court granted on
December 23, 2017. Respondent also subsequently filed a petition to approve a structured
settlement with decedents’ insurance company on April 18, 2018, which he amended on June
15, 2018; the petition was granted on July 31, 2018.
¶9 On March 13, 2018, respondent filed a motion for summary judgment with respect to
claimant’s claim against each estate, claiming that the Dead-Man’s Act precluded claimant
from establishing that he made any loans to decedents. Respondent further argued that, to the
extent that claimant could establish that he transferred any funds to decedents, such transfers
were presumed to be gifts and claimant was unable to rebut the presumption because he could
not establish that decedents understood the transfers to be loans. Respondent noted that
claimant was relying on the testimony of (1) himself, (2) his daughter-in-law, Barbara, and
(3) another son, Michael. 2 Respondent argued that claimant’s testimony was clearly barred by
the Dead-Man’s Act, as was his handwritten log that purported to detail the transactions made.
Respondent also argued that there was no exception that would permit the log to be admitted
into evidence. Additionally, respondent claimed that, even if they were not barred by the Dead-
Man’s Act, the testimony of Barbara and Michael added nothing to the proceedings, as neither
had personal knowledge about decedents’ intentions. Finally, respondent noted that some of
the purported transfers were from accounts on which Kevin was a joint owner and claimed
that, therefore, claimant was paying Kevin money that legally belonged to him, which could
not be characterized as a loan.
¶ 10 In response, claimant argued that he was able to overcome the presumption that his
transfers were gifts, based on the documentary evidence provided by claimant and on
testimonial evidence. Claimant argued that his own testimony would demonstrate his intent
and that he would testify as to the foundation for the log that he prepared. Claimant also argued
that Barbara’s testimony would demonstrate that decedents received money from claimant and
would support claimant’s testimony as to the log and as to claimant’s intent. Claimant claimed
that his testimony was not precluded by the Dead-Man’s Act because it fell under the
foundational exception set forth in section 8-401 of the Code of Civil Procedure (Code) (735
ILCS 5/8-401 (West 2016)). Claimant also argued that permitting the estates to retain the funds
would result in unjust enrichment to the estates.
¶ 11 Attached to claimant’s response were two affidavits: his own affidavit and the affidavit of
Barbara. In his affidavit, claimant averred that he lent various sums of money to the decedents
between May 18, 2008, and February 2017 and that he intended that the monies be repaid in
2
The record shows that claimant is a widower and he and his late wife had four sons, three of whom
are now deceased. Barbara Crawford is the widow of one of claimant’s sons, Wayne Jr., and Michael
Crawford is claimant’s sole living son.
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full and never intended that the funds would constitute gifts. Claimant further averred that, as
part of his recordkeeping, he maintained a handwritten log on which he listed the amount of
each advancement, the date of each advancement, a running total of amounts due and owing,
and “companion entries that each advancement was borrowed.” In her affidavit, Barbara
averred that she “[had] personal knowledge of the transaction log kept by [claimant] and [had]
personal knowledge of [decedents’] continual receipt of money from [claimant].” Barbara
further averred that, “[d]uring the time in question, [she] had personal knowledge that
[claimant’s] intent was to be repaid by the decedents and that [claimant] did not intend the
advancements to be donative.”
¶ 12 On April 23, 2018, respondent filed a motion to strike claimant’s affidavit, claiming that
claimant’s testimony in his affidavit as to what he did or what he thought was barred by the
Dead-Man’s Act. Respondent further claimed that claimant’s attempt to authenticate a
document in his affidavit was also barred by the Dead-Man’s Act and by hearsay rules of
evidence. On the same day, respondent also filed a motion to strike Barbara’s affidavit,
claiming that Barbara could not have personal knowledge of claimant’s intent and further
claiming that, even if she could, the affidavit did not set forth any facts with particularity but
only set forth conclusions.
¶ 13 In response to respondent’s motions to strike, claimant argued that the affidavits consisted
of facts within the affiants’ personal knowledge and repeated the arguments made in his
response to the motion for summary judgment concerning the applicability of section 8-401 of
the Code.
¶ 14 On September 6, 2018, the probate court granted respondent’s motion to strike, finding that
claimant’s testimony concerning the alleged loans was barred by the Dead-Man’s Act because
“[t]estimony by an adverse party on his own behalf regarding events which took place in the
presence of the deceased is inadmissible.” The court also found that the written log and
claimant’s testimony about the log were similarly barred by the Dead-Man’s Act and did not
fall under the exception set forth by section 8-401 of the Code. The court found that,
“[r]egardless of whether the Claimant’s written log qualifies as a ‘book account or any
other record or document’, as required by 735 ILCS 5/8-401, the Supreme Court of
Illinois and the appellate courts of this state have consistently held that entries in a book
of account for money loaned are not admissible, as that is not usually the subject matter
of an account.”
With respect to Barbara’s affidavit, the probate court found that her assertions regarding
claimant’s intent were conclusory and not based on evidentiary facts to which she would be
capable of testifying. Accordingly, the probate court struck claimant’s affidavit in its entirety
and struck the paragraph of Barbara’s affidavit concerning claimant’s intent. The court also
gave claimant leave to file an amended response to respondent’s motion for summary
judgment, which he did not do. Instead, on October 5, 2018, claimant filed a motion to
reconsider the probate court’s September 6, 2018, order striking claimant’s affidavits, arguing
that the court erred in its application of the law.
¶ 15 On November 26, 2018, the probate court denied claimant’s motion to reconsider, finding
unpersuasive claimant’s argument that his log was not a book of account but was an “other
record or document” permitted under section 8-401. The court found that the legislature
intended “other record[s] or document[s]” to refer to records and documents similar to account
books, meaning that claimant’s log would not fall under that exception if it was truly different
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than a book of account, as claimant argued. The court also found that, apart from this evidence,
claimant’s remaining evidence failed to overcome the presumption that the transfers were gifts.
Accordingly, the probate court granted respondent’s motion for summary judgment and denied
claimant’s claim.
¶ 16 On December 21, 2018, claimant filed notices of appeal with respect to both estates,
appealing the September 6, 2018, order striking his affidavits and the November 26, 2018,
order granting summary judgment and denying his claim. We consolidated the two appeals on
March 29, 2019.
¶ 17 ANALYSIS
¶ 18 On appeal, claimant claims that the probate court erred in granting respondent’s motion to
strike and in granting summary judgment in respondent’s favor. We have jurisdiction over the
instant appeals pursuant to Illinois Supreme Court Rule 304(b)(1) (eff. Mar. 8, 2016), which
permits appeals from “[a] judgment or order entered in the administration of an estate,
guardianship, or similar proceeding which finally determines a right or status of a party.” The
disallowance of a claim against an estate is one such order that may be appealed to this court.
Ill. S. Ct. R. 304, Committee Comments (rev. Sept. 1988) (listing “allowing or disallowing a
claim” as an example of an appealable order under Rule 304(b)(1)); Hines v. Department of
Public Aid, 358 Ill. App. 3d 225, 228-29 (2005).
¶ 19 I. Motion to Strike
¶ 20 In the case at bar, we first consider the probate court’s decision on the motion to strike, as
its decision to strike claimant’s affidavit and a portion of Barbara’s affidavit meant that
claimant could not rely on those documents in support of his arguments concerning the motion
for summary judgment, nor could he rely on the handwritten log that was purportedly
authenticated by claimant’s affidavit. The sufficiency of affidavits filed in opposition to a
motion for summary judgment is governed by Illinois Supreme Court Rule 191(a) (eff. Jan. 4,
2013). Garland v. Sybaris Clubs International, Inc., 2019 IL App (1st) 180682, ¶ 37. Rule
191(a) requires that affidavits (1) be based on the personal knowledge of the affiant, (2) set
forth with particularity the facts on which the claim is based, (3) attach sworn or certified
copies of documents that the affiant relied on, and (4) consist of facts admissible in evidence
and not conclusions. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013); Garland, 2019 IL App (1st)
180682, ¶ 37. Strict compliance with the requirements of Rule 191(a) is necessary because an
affidavit submitted in the context of summary judgment proceedings serves as a substitute for
testimony at trial. Robidoux v. Oliphant, 201 Ill. 2d 324, 335-36 (2002). “In addressing a
motion for summary judgment, a trial court may not consider evidence or testimony that would
not be admissible at trial. [Citation.] Therefore, affidavits submitted in opposition to a motion
for summary judgment must consist of facts admissible in evidence and not of conclusions.
[Citation.]” Garland, 2019 IL App (1st) 180682, ¶ 37. We review de novo the propriety of a
trial court’s striking all or part of an affidavit in the context of summary judgment proceedings.
Garland, 2019 IL App (1st) 180682, ¶ 38. De novo consideration means we perform the same
analysis that a trial judge would perform. XL Specialty Insurance Co. v. Performance Aircraft
Leasing, Inc., 2019 IL App (1st) 181031, ¶ 62.
¶ 21 With respect to Barbara’s affidavit, the probate court struck paragraph 4, in which Barbara
averred:
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“During the time in question, I had personal knowledge that [claimant’s] intent was
to be repaid by the decedents and that [claimant] did not intend the advancements to be
donative.”
The probate court struck this paragraph because it found that Barbara’s assertions regarding
claimant’s intent were conclusory and were not based on evidentiary facts to which she was
capable of testifying. We agree.
¶ 22 As an initial matter, we note that claimant’s arguments concerning Barbara’s affidavit are
forfeited, as claimant does not make any argument concerning the affidavit in his brief on
appeal. 3 Claimant does make a brief argument concerning paragraph 3 in his reply brief, but
paragraph 3 was not stricken by the probate court. Moreover, it is well settled that points not
argued in the appellant’s initial brief are forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May 25,
2018) (“Points not argued are forfeited and shall not be raised in the reply brief, in oral
argument, or on petition for rehearing.”); Wright-Young v. Chicago State University, 2019 IL
App (1st) 181073, ¶ 101.
¶ 23 Additionally, even if claimant had properly presented his argument on appeal, we agree
with the probate court on the merits. Paragraph 4 of Barbara’s affidavit is wholly conclusory,
simply reciting that she “had personal knowledge” of claimant’s intent in making payments to
decedents. The affidavit does not provide any support for this assertion or explain the basis of
this conclusion as to claimant’s intent. As noted, Rule 191(a) requires that affidavits set forth
with particularity the facts on which the claim is based and consist of facts admissible in
evidence and not mere conclusions. Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013); Garland, 2019 IL
App (1st) 180682, ¶ 37. Here, paragraph 4 of Barbara’s affidavit does not satisfy these
requirements and, accordingly, the probate court correctly struck it.
¶ 24 We turn, then, to the main issue on appeal: whether the probate court properly struck
claimant’s affidavit and, consequently, the handwritten log that was purportedly authenticated
by that affidavit. In the case at bar, the probate court found that claimant was prohibited from
testifying as to the alleged loans by the Dead-Man’s Act (Act) (735 ILCS 5/8-201 (West
2016)). The Act is set forth in section 8-201 of the Code and provides, in relevant part:
“In the trial of any action in which any party sues or defends as the representative of a
deceased person or person under a legal disability, no adverse party or person directly
interested in the action shall be allowed to testify on his or her own behalf to any
conversation with the deceased or person under legal disability or to any event which
took place in the presence of the deceased or person under legal disability ***.” 735
ILCS 5/8-201 (West 2016).
¶ 25 Claimant does not dispute that the Act would generally apply to bar his testimony in the
instant action. 4 Claimant is clearly both an adverse party and a person directly interested in
3
The sole reference to Barbara’s affidavit in the analysis portion of claimant’s brief is that
“[claimant] clearly refuted any such presumption [of a gift], as did Barbara Crawford, both of whom
clearly stated that the advances were not gifts and that it was expected that the advances were to be
repaid.”
4
We note that, despite affirmatively acknowledging that the Act would normally apply in his initial
brief on appeal, in his reply brief, claimant argues that respondent waived the prohibition of the Act by
arguing that the transactions were gifts. As noted, claimant may not raise an argument for the first time
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the action. See In re Estate of Ierulli, 167 Ill. App. 3d 595, 599 (1988) (“In order to disqualify
a witness as one directly interested in the action, the witness’ interest in the judgment must be
such that some pecuniary gain or loss will come to the witness directly as an immediate result
of the judgment.”). Accordingly, he would not be able to testify on his own behalf as to any
conversations with decedents or to events taking place in their presence. The making of a loan
to decedents would certainly fall within the purview of the Act’s prohibition. See, e.g., Smith
v. Haran, 273 Ill. App. 3d 866, 876 (1995) (noting that testimony that the decedent paid money
pursuant to a promissory note would “clearly qualify as an event” under the Act), overruled on
other grounds by Gunn v. Sobucki, 216 Ill. 2d 602, 612 (2005); 5 Gunn, 216 Ill. 2d at 610
(finding that testimony that a payment was not made as consideration under a bill of sale was
considered an event under the Act). The Act bars evidence that the decedent could have refuted
if he was alive. Gunn, 216 Ill. 2d at 609. In the case at bar, if decedents were alive, they would
be able to refute claimant’s characterization of payments to them as loans. Thus, claimant’s
testimony to the contrary as to those transactions would be barred by the Act. See Gunn, 216
Ill. 2d at 611 (“Since a decedent is unable to testify about a payment, whether actually made
or not, fairness dictates that an adverse party also be unable to testify as to the payment.”).
¶ 26 In the case at bar, instead of arguing that the Act is inapplicable, claimant argues that an
exception applies. Under the Act, “[a]ny testimony competent under Section 8-401 of this Act,
is not barred by this Section.” 735 ILCS 5/8-201(c) (West 2016). Section 8-401 of the Code is
entitled “Account books and records” and provides, in relevant part:
“Where in any action or proceeding, the claim or defense is founded on a book account
or any other record or document, any party or interested person may testify to his or
her account book, or any other record or document and the items therein contained; that
the same is a book, record, or document of original entries, and that the entries therein
were made by himself or herself, and are true and just; *** and thereupon the account
book and entries or any other record or document shall be admitted as evidence in the
cause.” 735 ILCS 5/8-401 (West 2016).
Claimant argues that his handwritten log falls within the purview of this exception and,
therefore, he is permitted to testify as to the document’s authenticity.
¶ 27 As an initial matter, we note that claimant’s statements as to his intent in making any
transfers to decedents would not fall within the purview of section 8-401. Section 8-401 simply
permits a party to satisfy the foundational requirements for admission of their records through
their own testimony instead of requiring a clerk or other employee to testify to them, as was
required under the common law. House v. Beak, 141 Ill. 290, 296-97 (1892) (discussing
predecessor to section 8-401). 6 It does not provide an exception for the party to testify about
in his reply brief. Moreover, respondent’s claim that claimant had failed to provide competent evidence
rebutting the presumption of gift is in no way a waiver of the Act.
5
We note that, while the Smith court concluded that nonpayment under a promissory note would
not constitute an event, the Gunn court overruled Smith on this point, finding that, “[f]or purposes of
applying the Dead-Man’s Act, there is no logical basis for distinguishing between a payment made and
one not made.” Gunn, 216 Ill. 2d at 610.
6
Our supreme court has indicated that the original form of the Act “is similar to today’s Act, except
that the current version is slightly less restrictive.” Gunn, 216 Ill. 2d at 611. Thus, case law interpreting
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his intentions in making the transactions detailed in that record. Claimant provides no authority
to suggest that the limited exception provided by section 8-401 should be expanded to
incorporate testimony about the parties’ intentions in such a way. Accordingly, the probate
court properly struck the portion of claimant’s affidavit concerning his intent in making any
payments to decedents as barred under the Act.
¶ 28 With respect to claimant’s log and his statements intending to authenticate the log, section
8-401 applies only where “the claim or defense is founded on a book account or any other
record or document.” 735 ILCS 5/8-401 (West 2016). While section 8-401 does not define
“book account,” 7 our supreme court has suggested that “[a]n account-book, to be used as
evidence, should be the book containing an entry of transactions in the store, factory or office,
as they occur in the regular order of business.” Kibbe v. Bancroft, 77 Ill. 18, 19 (1875). While
it is arguable whether claimant’s log satisfies this definition, even if it did, such a log would
not be admissible under section 8-401 because it is an account book detailing money
purportedly lent to decedents. Our courts have consistently found that an account book for
money lent is not admissible under section 8-401 or its predecessors. See, e.g., Windmiller v.
McCartney, 108 Ill. App. 2d 264, 266-67 (1969) (“It appears to be the majority rule that unless
there is a statute providing otherwise, books of account are inadmissible to show the payment
or loan of money ***.”); In re Estate of Martine, 233 Ill. App. 94, 96 (1924) (“This statute has
been construed a number of times by the Supreme Court and by this court and it has been
uniformly held that entries in a book of account for money loaned are not admissible.”);
MacKenzie v. Barrett, 148 Ill. App. 414, 417 (1909) (finding that notations on check stubs as
evidence of loans were inadmissible, as “[i]t would seem that the stubs are no stronger evidence
than entries in appellee’s book of loans to the deceased of the several sums for which the checks
were given, made at the same times at which the checks were given. Such entries of charges
for money loaned would not be evidence.”); Ruggles v. Gatton, 50 Ill. 412, 416 (1869) (noting
that the supreme court had previously found that an account book for money lent was not
admissible in evidence and finding that “[t]he rule there announced has been repeatedly
recognized by subsequent decisions of this court, and without any modification. It must,
therefore, be regarded as the settled law of the court.”); Boyer v. Sweet, 4 Ill. 120, 122-23
(1841) (admission of account books “would not apply to an account for money lent, as that is
not usually the subject matter of [an] account, notes being generally taken”). The rationale
behind such a rule is that loans are usually documented in ways other than through an account
book, namely, through the execution of notes evidencing the loans. See Windmiller, 108 Ill.
App. 2d at 266-67 (noting that the rule prohibiting admission of account books for loans of
money is based “on the ground that as the person paying or loaning money has it in his power
to perpetuate evidence of that fact by taking a receipt or note, [so] the reason for admitting a
party’s books of account as evidence in his own behalf does not then exist”); Boyer, 4 Ill. at
122-23 (noting that “notes [are] generally taken” as evidence of money lent). Accordingly,
even if claimant’s log was an account book, it would not be admissible under the exception set
forth in section 8-401 because it is purportedly an account book for money loaned to decedents.
older versions of the Act has been used in interpreting the current version. See, e.g., Gunn, 216 Ill. 2d
at 612.
7
We note that the case law, as well as section 8-401 itself, use the terms “book account” and
“account book” interchangeably.
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¶ 29 However, that is not the end of our inquiry. Section 8-401 applies where “the claim or
defense is founded on a book account or any other record or document.” (Emphasis added.)
735 ILCS 5/8-401 (West 2016). Therefore, we must thus consider whether claimant’s log falls
within this second category of admissible documents. “The fundamental objective of statutory
construction is to ascertain and give effect to the intent of the legislature.” 1010 Lake Shore
Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 21 (citing Bettis v. Marsaglia,
2014 IL 117050, ¶ 13). “The most reliable indicator of legislative intent is the statutory
language, given its plain and ordinary meaning.” 1010 Lake Shore Ass’n, 2015 IL 118372, ¶ 21
(citing State Building Venture v. O’Donnell, 239 Ill. 2d 151, 160 (2010)). “A reasonable
construction must be given to each word, clause, and sentence of a statute, and no term should
be rendered superfluous.” 1010 Lake Shore Ass’n, 2015 IL 118372, ¶ 21 (citing Slepicka v.
Illinois Department of Public Health, 2014 IL 116927, ¶ 14). “ ‘[W]hen statutory language is
plain and certain the court is not free to give it a different meaning.’ ” Kalkman v. Nedved,
2013 IL App (3d) 120800, ¶ 12 (quoting In re Estate of Hoehn, 234 Ill. App. 3d 627, 629
(1992)). “[A] court may not depart from the plain statutory language by reading into it
exceptions, limitations, or conditions not expressed by the legislature.” Kalkman, 2013 IL App
(3d) 120800, ¶ 12 (citing In re Estate of Ellis, 236 Ill. 2d 45, 51 (2009)).
¶ 30 However, “[i]t is a ‘fundamental principle of statutory construction (and, indeed, of
language itself) that the meaning of a word cannot be determined in isolation, but must be
drawn from the context in which it is used. [Citations.]’ ” Corbett v. County of Lake, 2017 IL
121536, ¶ 27 (quoting Deal v. United States, 508 U.S. 129, 132 (1993)). The terms in a statute
are not to be considered in a vacuum; instead, “the words and phrases in a statute must be
construed in light of the statute as a whole, with each provision construed in connection with
every other section. [Citations.]” (Internal quotation marks omitted.) Corbett, 2017 IL 121536,
¶ 27. “[D]issecting an individual word or phrase from a statutory provision and mechanically
applying to it a dictionary definition is clearly not the best way of ascertaining legislative
intent.” Corbett, 2017 IL 121536, ¶ 28.
¶ 31 In the case at bar, we must determine whether section 8-401’s reference to “any other
record or document” (735 ILCS 5/8-401 (West 2016)) may be interpreted to include a log of
transfers of money purportedly loaned to a decedent, despite the fact that such a document is
prohibited if it is considered to be a book account. The original form of section 8-401, enacted
in 1867, did not contain this language—it simply referred to “a book account.” 1867 Ill. Laws
184 (§ 3). The additional language was added in 1949, when the statute was amended to apply
to “a book account or any other record or document.” 1949 Ill. Laws 919 (§ 3). At least one
court has interpreted the amended statute to continue to prohibit a book purporting to document
loans, reasoning that the party claiming to have made the loan had it in his power to perpetuate
evidence of a loan by virtue of issuing a note or even a receipt. See Windmiller, 108 Ill. App.
2d at 266-67. Thus, under this interpretation, claimant’s log in the instant case would not fall
within section 8-401’s exception.
¶ 32 In interpreting section 8-401, we are also guided by the use of the cardinal rule of statutory
construction known as ejusdem generis. “Under the ejusdem generis doctrine, when a statutory
clause specifically describes several classes of persons or things and then includes ‘other
persons or things,’ the word ‘other’ is interpreted to mean ‘other such like.’ ” Pooh-Bah
Enterprises, Inc. v. County of Cook, 232 Ill. 2d 463, 492 (2009) (quoting People v. Davis, 199
Ill. 2d 130, 138 (2002)). “Ejusdem generis is a ‘common drafting technique designed to save
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the legislature from spelling out in advance every contingency in which the statute could
apply.’ ” Pooh-Bah Enterprises, 232 Ill. 2d at 492 (quoting 2A Norman J. Singer & J.D.
Shambie Singer, Statutes and Statutory Construction § 47:17, at 370-73 (7th ed. 2007)).
¶ 33 Similarly, under the canon of statutory construction known as noscitur a sociis, “ ‘a word
is given more precise content by the neighboring words with which it is associated.’ ” Corbett,
2017 IL 121536, ¶ 31 (quoting United States v. Williams, 553 U.S. 285, 294 (2008)). Such a
canon is particularly useful when construing one term in a list, in order to avoid interpreting
the term so broadly that it is inconsistent with its accompanying words, “thus giving unintended
breadth to [legislative acts]. [Citation.]” (Internal quotation marks omitted.) Corbett, 2017 IL
121536, ¶ 32.
¶ 34 On the other hand, as claimant points out, statutes should be interpreted so that no clause
is meaningless, meaning that “any other record or document” (735 ILCS 5/8-401 (West 2016))
must mean something other than a “book account” (735 ILCS 5/8-401 (West 2016)). See 1010
Lake Shore Ass’n, 2015 IL 118372, ¶ 21 (citing Slepicka, 2014 IL 116927, ¶ 14). Additionally,
the “list” to be considered in this case consists of one item, namely, a book account, making it
more challenging to draw firm conclusions as to the meaning of “other record[s] or
document[s]” (735 ILCS 5/8-401 (West 2016)). In the case at bar, however, we must ultimately
agree with respondent that claimant’s log would not fall within the purview of section 8-401.
¶ 35 As noted, the reason behind the exception that is now codified in section 8-401 was to
permit a party to testify to his own books, which he was not permitted to do under the common
law. House, 141 Ill. at 296; see also Boyer, 4 Ill. at 122 (noting that English common law did
not permit the books of a tradesman to be admitted into evidence without the testimony of a
clerk). The rule did not alter the common-law rule that the records themselves were required
to contain entries that were made contemporaneously in the ordinary course of business by a
person whose duty it was to make them. House, 141 Ill. at 296. 8 Thus, the records permitted
by the predecessor to section 8-401 were created in the context of business transactions. By
contrast, in the case at bar, the records sought to be admitted into evidence by claimant concern
personal transactions: transfers of money between claimant and his son and daughter-in-law.
The fact that claimant allegedly intended to be repaid for these payments does not change their
personal character. Claimant does not claim to have been in the business of making loans or
engaging in other financial matters. Thus, interpreting section 8-401 to encompass these types
of transfers means interpreting it to allow an entirely different character of transaction—
personal transactions and not business transactions. We see nothing in the language, history,
or prior interpretations of section 8-401 that would permit such an expansive reading of the
statute, nor has claimant presented any case law in which the statute has been so interpreted.
Accordingly, we cannot find that claimant’s log falls within the exception set forth by section
8-401, and therefore, it—and claimant’s testimony attempting to authenticate it—was barred
by the Dead-Man’s Act and was properly stricken by the probate court. 9
8
This rule is presently codified in Illinois Supreme Court Rule 236(a) (eff. Aug. 1, 1992).
9
Claimant suggests that we should decline to follow the Act, arguing that the “modern trend” is to
refuse to apply the Act. However, the Act has been applied by our supreme court as recently as 2005,
in Gunn, 216 Ill. 2d 602, and we cannot simply decline to apply a statute that remains good law. See
also Doe v. Dilling, 228 Ill. 2d 324, 327 n.6 (2008) (referencing the Act in a footnote); Brenner v.
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¶ 36 We note that claimant makes several arguments that the log falls within a hearsay exception
and is therefore admissible on that basis. However, the Illinois Rules of Evidence, in which the
exceptions to hearsay are set forth, specifically provide that “[a] statutory rule of evidence is
effective unless in conflict with a rule or a decision of the Illinois Supreme Court.” Ill. R. Evid.
101 (eff. Jan. 6, 2015). Accordingly, as the Act prohibits the admission of claimant’s affidavit
and log, that statutory rule would govern. See In re Estate of Gott, 213 Ill. App. 3d 297, 301
(1991) (declining to apply hearsay exceptions where the Act barred the testimony sought to be
admitted). Therefore, the probate court properly granted respondent’s motions to strike
claimant’s and Barbara’s affidavits, as well as the log purportedly authenticated by claimant’s
affidavit.
¶ 37 II. Motion for Summary Judgment
¶ 38 Next, we consider whether the probate court properly granted respondent’s motion for
summary judgment. A trial court is permitted to grant summary judgment only “if the
pleadings, depositions, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016). The trial court must view
these documents and exhibits in the light most favorable to the nonmoving party. Home
Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 (2004). We review a trial
court’s decision to grant a motion for summary judgment de novo. Outboard Marine Corp. v.
Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). As noted, de novo consideration
means we perform the same analysis that a trial judge would perform. XL Specialty Insurance
Co., 2019 IL App (1st) 181031, ¶ 62.
¶ 39 “Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. However,
“[m]ere speculation, conjecture, or guess is insufficient to withstand summary judgment.”
Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party moving for
summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. App. 3d 618,
624 (2007). The movant may meet his burden of proof either by affirmatively showing that
some element of the case must be resolved in his favor or by establishing “ ‘that there is an
absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill. App. 3d at
624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose of summary
judgment is not to try an issue of fact but *** to determine whether a triable issue of fact
exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) (quoting Luu
v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis appearing in the record,
whether or not the trial court relied on that basis or its reasoning was correct. Ray Dancer, Inc.
v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 40 In the case at bar, the probate court granted respondent’s motion for summary judgment
because it found that claimant had not established that the transfers from claimant were loans
and not gifts. 10 A transfer from a parent to a child is presumed to be a gift. In re Marriage of
Evelyn Statsinger Trust, 2018 IL App (1st) 180131, ¶ 15 (appellate court referencing Act in discussing
testimony).
10
We note that, on appeal, claimant briefly argues that if he does not prevail on his claims regarding
the existence of a loan, he should be permitted to recover based on an unjust enrichment theory.
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Marcello, 247 Ill. App. 3d 304, 314 (1993); see also In re Marriage of Patel, 2013 IL App
(1st) 112571, ¶ 76; In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 88; Frey v.
Wubbena, 26 Ill. 2d 62, 70-71 (1962). Courts have also applied such a presumption to a transfer
from a parent to a son- or daughter-in-law, especially when the transfer was to both the child
and the in-law. See Judgment Services Corp. v. Sullivan, 321 Ill. App. 3d 151, 158 (2001);
In re Estate of McCormick, 262 Ill. App. 3d 163, 170 (1994). In the case at bar, there is no
dispute that such a presumption of gift would apply to the transfers made from claimant to
decedents.
¶ 41 A party seeking to overcome the presumption of a gift must do so by “clear, convincing,
unequivocal and unmistakable evidence.” In re Estate of Wilson, 81 Ill. 2d 349, 357 (1980).
“Clear and convincing” evidence is “the quantum of proof that leaves no reasonable doubt in
the mind of the fact finder as to the truth of the proposition in question.” Bazydlo v. Volant,
164 Ill. 2d 207, 213 (1995).
¶ 42 In the case at bar, the evidence presented by claimant in support of his claim, apart from
the evidence that was stricken by the probate court, consisted of (1) claimant’s home equity
line of credit account statements, showing withdrawals on various dates, (2) copies of checks
from claimant’s checking account, showing checks made payable to decedents, and (3) a lease
agreement in which claimant leased a Volkswagen. At best, this evidence shows that claimant
wrote checks to decedents from his checking account—the home equity account statements
and the lease agreement make no reference to decedents at all. The evidence certainly does not
establish by clear and convincing evidence that any transfers made to decedents were not gifts,
meaning that the presumption that they were gifts remains unrebutted.
¶ 43 We find unpersuasive claimant’s argument that the question of his donative intent is a
question of fact that is inappropriate for summary judgment. This would be the case if claimant
had, in fact, provided evidence of such. However, in the case at bar, claimant did not present
any admissible evidence as to his intent—for instance, there was no testimony that a
disinterested individual had observed any conversations between claimant and decedents
regarding the transfers, there was no testimony that claimant or decedents had any
conversations regarding their intent in making or receiving the funds, and there was no
documentation showing that decedents and claimant had entered into loan agreements. The
only evidence as to claimant’s intent was his self-serving affidavit and log, both of which were
properly stricken under the Dead-Man’s Act. Accordingly, the probate court properly granted
summary judgment in respondent’s favor and denied claimant’s claims against decedents’
estates.
¶ 44 CONCLUSION
¶ 45 For the reasons set forth above, the probate court’s judgment is affirmed. The probate court
properly struck paragraph 4 of Barbara’s affidavit, as it was conclusory and did not set forth
However, claimant did not plead an alternative unjust enrichment theory in the claims that he filed
before the probate court. Moreover, it is well settled that an unjust enrichment claim is not available
where an express contract is alleged. People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473, 497
(1992) (“Because unjust enrichment is based on an implied contract, where there is a specific contract
which governs the relationship of the parties, the doctrine of unjust enrichment has no application.”
(Internal quotation marks omitted.)).
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any evidentiary facts to which she was capable of testifying. The court also properly struck
claimant’s affidavit and his handwritten log, as they were barred by the Act. Finally, the court
properly granted summary judgment in respondent’s favor and denied claimant’s claims with
respect to both decedents’ estates.
¶ 46 Affirmed.
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