Estate of Wernick v. Macks (117 Ill. App. 3d 855, 1983)

JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioners, Carson Wernick, executor of the estate of E. Davis Wernick, deceased (the Estate) and Samuel S. Wernick, son and one of the beneficiaries of the Estate, brought proceedings in probate court against respondent, seeking recovery of the decedent’s one-half beneficial interest in a land trust which held legal title to certain properties commonly known as 1615 South Wabash Avenue and .60 East Cedar Street (the Cedar property) in Chicago, Illinois, or, in the alternative, for one-half of the fair market value of said properties. Respondent, with his wife, claimed sole ownership of the Cedar property by virtue of an assignment allegedly executed by the decedent shortly before his death in exchange for-, a $90,000 promissory note (the note). After conducting substantial discovery, petitioners filed á motion for partial summary judgment in the amount of $90,000. The motion, which related solely to the Cedar property, was based on respondent’s admissions in the record which established that the decedent’s interest in the Cedar property had an undisputed value of at least that amount and that respondent had not paid the decedent any money to that date against the alleged note. Petitioners’ prayer for relief stated:

“Said partial summary judgment should be entered and yet have no bearing on any future litigation with respect to the difference between the NINETY THOUSAND DOLLAR ($90,000.00) figure and whatever the Court will later rule as to the total amount due and owing the Estate for the property at 60 East Cedar Street, Chicago, Illinois.” (Emphasis added.)

Petitioners at all times denied that the subject transaction had ever taken place between the parties and denied having possession of any note, nor was respondent able to produce a copy of said note, although he testified that he always made copies of the documents that he prepared. Nevertheless, a question arose during oral argument on petitioners’ motion concerning the hypothetical presentment of the note which respondent allegedly gave to the decedent, and the Estate agreed to indemnify respondent against a hypothetical holder in due course. The trial court granted petitioners’ motion on June 4, 1982. Respondent subsequently filed a motion for modification of judgment which the trial court granted on June 23, 1982, and which is the subject of this appeal.

Respondent’s motion was based solely on the premise that by proceeding to partial summary judgment on the admitted minimum value of the Cedar property, petitioners had necessarily conceded that a transaction (the purported assignment) had taken