author: JUSTICE McNULTY

text:
    GUILLERMO ROMO, Adm’r of the Estate of Francisco Romo, Deceased, Plaintiff-Appellant, v. ALLIN EXPRESS SERVICE, INC., et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—2882
    Opinion filed July 26, 1991.
    Rehearing denied October 9, 1991.
    Randall S. Goulding, of Chicago (David A. Novoselsky & Associates, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas F. Tobin, Michael A. Pollard, and Mary K. McMahon Dudley, of counsel), for appellee Ford Motor Company.
   JUSTICE McNULTY

delivered the opinion of the court:

Guillermo Romo, administrator of the estate of Francisco Romo, appeals the trial court’s order of September 27, 1989, denying his second section 2 — 1401 petition (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) for want of jurisdiction. Romo’s wrongful death and product liability suit was dismissed on October 27, 1987, for failure to comply with pretrial discovery requests regarding the furnishing of an expert witness as required by Supreme Court Rule 220 (107 Ill. 2d R. 220). The first section 2 — 1401 petition seeking to vacate the 1987 dismissal was denied without prejudice on August 16, 1989. The second such petition was filed on September 7, 1989, and denied on September 27, 1989. On October 23, 1989, plaintiff filed a notice of appeal from the September 27 order.

Defendant’s contention that the denial of a section 2 — 1401 petition to vacate is a final and appealable order is supported by statute. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401; 107 Ill. 2d R. 304(b)(3).) Case law indicates not only that a second section 2 — 1401 petition is an inappropriate avenue for relief in the trial court, but also that a second such petition does not toll the 30 days provided for filing an appeal. (107 Ill. 2d R. 303. See In re Marriage of Ohlson (1984), 126 Ill. App. 3d 374, 466 N.E.2d 1280; Peoples Gas Light & Coke Co. v. Rubin (1980), 89 Ill. App. 3d 244, 411 N.E.2d 866; In re Marriage of Kirk (1980), 85 Ill. App. 3d 805, 407 N.E.2d 562.) Defendant therefore maintains that the trial court correctly dismissed plaintiff’s second petition and argues that this court should likewise dismiss an untimely appeal.

Without departing from established authority, we find that because of the dismissal of the first section 2 — 1401 petition on August 16, 1989, “without prejudice,” the trial court invited a refiling, and thus retained jurisdiction over the petition filed 22 days later on September 7, 1989. In this order the trial judge stated:

“Now, there is no question that your petition does not set forth specific factual allegations of your having a meritorious claim. *** At this point my order is, your petition is denied without prejudice.”

The inclusion of this language makes this judgment substantially similar to an order granting leave to amend. Plaintiff’s counsel, relying on such an interpretation refiled the petition, this time setting forth specific factual allegations, thus curing the defect noted by the trial judge. Case law does support the court’s authority to grant leave to amend a section 2 — 1401 petition and further indicates that the time for filing an appeal does not begin to run until a final judgment on such an amendment is issued. See Elliott Construction Corp. v. Zahn (1968), 99 Ill. App. 2d 112, 241 N.E.2d 129; Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 427 N.E.2d 645.

Accordingly, we find that plaintiff filed a timely appeal from the order of September 27, 1989. We further determine that the trial judge had jurisdiction to hear the second section 2 — 1401 petition and reverse his order dismissing such petition.

The judgment of the trial court is reversed and remanded for a hearing on the merits of the second section 2 — 1401 petition.

Judgment reversed and remanded with directions.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
      In re JOHNNY S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Johnny S., Respondent-Appellee (Johnny S. et al., Respondents-Appellants)).
    First District (1st Division)
    No. 1—91—0592
    Opinion filed August 5, 1991.
    Rehearing denied October 17, 1991.

      Patrick T. Murphy, Public Guardian, of Chicago (David Feeley, of counsel), guardian ad litem.

    Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke, Assistant Public Defender, of counsel), for appellee Johnny S.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This appeal is brought by three minors, who are represented by their guardian ad litem, from entry of an order which allows the children to remain with their father pending a final custody determination although allegations of sexual abuse had been leveled at him. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10.) Another daughter, who had made these representations, was removed from the household by a separate protective order entered at the same time. The three minors here denied sexual contact with their father at the hearing. The court also denied the minors’ motion for reconsideration of this order.

We will consider first a motion to dismiss this appeal brought by the children’s father (respondent) which is based on a claim that appellate jurisdiction is lacking. In response, the minors claim that their appeal is proper under Illinois Supreme Court Rule 307(a)(1), arguing that a protective order is injunctive relief cognizable under this rule allowing an interlocutory appeal as of right. (134 Ill. 2d R. 307(a)(1).) For the following reasons, we disagree with the minors’ position and therefore dismiss this appeal.

Section 2 — 10 of the Juvenile Court Act provides for hearings to determine temporary custody of a minor. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10.) The statute authorizes the trial court to order immediate placement of a child if it finds probable cause to believe that it is a matter of urgent necessity for the child’s protection. (People ex rel. Jones v. Jones (1976), 39 Ill. App. 3d 821, 350 N.E.2d 826.) An order of protection regarding the child may be entered if a finding of sufficient probable cause is made. Ill. Rev. Stat. 1989, ch. 37, par. 802-25.

Supreme Court Rule 307(a)(1) provides that an appeal may be taken from an interlocutory order granting, modifying, refusing or dissolving an injunction. (134 Ill. 2d R. 307(a)(1).) The question presented here is whether an order entered at a temporary custody hearing held pursuant to the Juvenile Court Act, which allows children to remain with their father, constitutes an injunction. We have found no case under this statute in which a reviewing court has made such a determination, although in some cases orders of protection barring public discussion of juvenile cases have been considered to be injunctive in nature and cognizable for appeal purposes. See In re a Minor (1989) , 127 Ill. 2d 247, 537 N.E.2d 292; In re Summerville (1989), 190 Ill. App. 3d 1072, 547 N.E.2d 513.

We believe that the facts giving rise to this order of protection are similar to interim orders entered in dissolution of marriage proceedings wherein relief was granted but found not to be injunctive in nature for purposes of appeal. (In re Marriage of Johnston (1991), 206 Ill. App. 3d 262, 562 N.E.2d 1004; In re Marriage of Meyer (1990) , 197 Ill. App. 3d 975, 557 N.E.2d 242.) In the Johnston case the court determined that a trial court’s order from which appeal was sought merely represented a declaration of the husband’s pension benefit rights. In Meyer the court held that proceeds of jointly held real estate be applied for purchase of another piece of property to accommodate one of the parties who had become disabled. However, in neither case had the parties’ rights in the dissolution of their marriage been finally determined. We believe the order before us is similar. The parties’ rights in the petition for adjudication of the minors’ wardship had not been finally decided, and the trial court’s interim decision to leave the parties’ status intact does not elevate this order to one that is appealable under Rule 307(a)(1).

The minors rely on two recent appellate decisions, In re Marriage of Blitstein (1991), 212 Ill. App. 3d 124, 569 N.E.2d 1357, and In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, 558 N.E.2d 388, for the proposition that a temporary custody order in a dissolution of marriage case is appealable. However, we believe both cases are distinguishable. The court determined in Blitstein which of the two parties was entitled to possession and use of the marital home. That decision did not expressly determine the question of temporary custody of the children. Similarly, in Lombaer the court decided that it had jurisdiction to review the trial court’s order regarding a physician’s deposition and production of the wife’s medical records. In conjunction with that decision the appellate court reviewed the order enjoining one spouse from entering the marital home, but this was made without any discussion of the appealability of that order. We therefore do not believe that either Blitstein or Lombaer is controlling.

We also note that the Illinois Supreme Court has specifically provided for immediate appeal of interlocutory orders terminating parental rights or granting, denying or revoking temporary commitment in adoption cases. (134 Ill. 2d R. 307(a)(6).) Had the supreme court wished to grant a similar right of appeal from the granting or denial of protective orders, it would have specifically done so. Further support for our construction is provided by Supreme Court Rule 306(a)(l)(v), in which the supreme court provided for permissive appeals “from interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules.” (134 Ill. 2d R. 306(a)(l)(v).) Because no other rule specifically provides for such an appeal, we believe that Rule 306 is applicable to this case. Because the minor-appellants have not even attempted to comply with the requirements of Rule 306(a)(l)(v), we grant the motion of the respondent-father and dismiss this appeal for lack of jurisdiction.

Appeal dismissed.

BUCKLEY and O’CONNOR, JJ., concur.

      the State has adopted the minors’ brief.


author: PRESIDING JUSTICE SCARIANO

text:
      In re MARRIAGE OF LAVONDA LEE TIMKE, Petitioner-Appellee, and VERNON TIMKE, Respondent-Appellant.
    First District (2nd Division)
    No. 1—89—1031
    Opinion filed August 13, 1991.
    Rehearing denied October 9, 1991.

      Arthur M. Berman, of Kirsh, Berman & Hoffenberg, Ltd., of Chicago (Mary Ellen Dienes, of counsel), for appellant.
    Anne M. Burke, of Larry S. Kajfes, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

LaVonda Lee Timke (LaVonda) and Vernon Timke (Vernon) were married in 1960. Three children were born to the parties, only one of whom was still a minor at the time this suit for dissolution was filed by LaVonda.

Vernon filed his answer to the petition, but when he failed to comply with LaVonda’s proper discovery demands and to appear in court as ordered, he was held in contempt of court, his pleadings were stricken, an order of default was entered against him, and the trial judge further ordered the sheriff “to attach the person of Vernon Timke and bring him before this Honorable Court, and not to release him from custody until he is brought before this Court.” At approximately the same time, according to LaVonda’s testimony at trial, Vernon departed for the Cayman Islands and told her during a phone conversation “[t]hat no judge would tell him what to do with his money after he had worked for 40 years.” On another occasion, she overheard him say that she “would not get his money, and by taking it out of the States, [she] wouldn’t be able to find it.” The court subsequently issued an order of default and his pleadings were stricken; the trial nevertheless proceeded to a hearing without Vernon’s presence, although he was represented there by counsel.

In entering judgment in this cause, the trial judge noted that “[t]he petitioner was stymied in this litigation by the failure of Mr. Timke to comply with any of the orders of the Court, in terms of the production of any of his books and records concerning any of this property;” and made the following award to LaVonda: (1) one 1981 Buick Riviera; (2) the marital domicile, having a market value of $275,000 to $300,000; (3) $250,000, representing a 50% interest in a certain promissory note; (4) $667,500, representing a 50% interest in another parcel of realty; (5) $172,000, representing a 40% interest in yet another parcel of realty; (6) $1,840,000, representing a 40% interest in the proceeds of a sale of a shopping center; (7) $720,000, representing a 40% interest in the proceeds of the sale of a condominium; and (8) $4,500,000, as maintenance in gross. The trial court later issued an order finding Vernon in contempt for his failure to deliver clear title to the marital domicile to LaVonda, as was required in the judgment for dissolution of the marriage. During the pendency of Vernon’s appeal, we stayed the circuit court from proceeding any further with respect to its contempt citation against Vernon until further order of this court.

Vernon contends that the trial court abused its discretion in awarding LaVonda what calculates to be over $8,400,000, citing section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)), which provides:

“In a proceeding for dissolution of marriage or declaration of invalidity of marriage, *** the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors ***.”

Vernon maintains that the trial judge neither divided the marital property fairly, nor considered the relevant factors which are enumerated in the statute.

LaVonda responds “that Vernon remains a fugitive in contempt of court with respect to the instant proceedings by refusing to comply with the court’s orders to turn over information respecting his assets, and presently, to surrender to be dealt with for his continuing contempt,” and thus, is not entitled to any relief at all. Vernon replies that the record does not support LaVonda’s contention “that, since the inception of this appeal, Vernon has refused to comply with a circuit court order to turn over information regarding his assets.” However, since “[i]t is well settled that on appeal, all reasonable presumptions are in favor of the action of the trial court, and the burden is on the appellant to show affirmatively the errors assigned on review[] [citation]” (In re Marriage of Smith (1985), 132 Ill. App. 3d 694, 702), and since Vernon has failed to cite anything in the record indicating that he has appeared before the circuit court in compliance with the contempt order entered in September of 1988 or that he has delivered clear title to the marital domicile, we must reject Vernon’s contention that he “has subjected himself to the jurisdiction of the court” and that he “continues to do so,” and we must further presume that Vernon still evades the jurisdiction of our courts.

Our supreme court has clearly and unmistakably held that a party who is adjudged to be in contempt of the trial court for failure to abide by its orders, and who has removed himself beyond its process and concealed himself outside the State of Illinois and seeks to attack the final decree of the court which he is defying, is not entitled to appellate relief. (Garrett v. Garrett (1930), 341 Ill. 232.) In Garrett, a husband was held in contempt for refusing to comply with court orders and decrees requiring payment of alimony, attorney fees, and court costs. The supreme court dismissed the appeal he had filed to review the divorce decree, concluding that “no reason is here disclosed why we should give consideration to one showing his contempt for our courts at the same time that he asks for their affirmative assistance. [Citations.]” (341 Ill. at 234.) Similarly, in the case at bar, we are afforded no reasons as to why we should yield to the entreaties of a contemnor who holds in nothing but scorn the very institutions whose aid he seeks to invoke. See Pavilon v. Kaferly (1990), 204 Ill. App. 3d 235, 257-58.

Vernon also asserts that it was error for the trial judge to award $4,500,000 for maintenance in gross when LaVonda received at least 40% of all the known marital property as to which there is any record. Specifically, Vernon alleges that in light of the provisions of section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504(a)), because the trial court awarded LaVonda a substantial amount of assets, it was inappropriate to award maintenance in gross for support. Section 504(a) provides that an award of maintenance in gross may be made

“only if [the court] finds that the spouse seeking maintenance:
(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1987, ch. 40, par. 504(a).)

Alternatively, Vernon argues, the circuit court erred in making its division of the parties’ marital property without adequate evidence as to its value, the time at which it was valuated, or whether the assets were marital property. Vernon contends that LaVonda had access to this information but did not present it at trial. However, as noted above, Garrett constitutes incontestable authority for the trial court’s making the award it handed down here. (Garrett, 341 Ill. at 234.) We also note that Vernon’s alternative argument was rejected in In re Marriage of Smith (1983), 114 Ill. App. 3d 47, where it was contended that the trial judge lacked sufficient knowledge to valúate the property. We agree with the Smith court that “[t]his argument is untenable *** because it is not the trial court’s obligation to obtain the value of the [assets, but must valúate them] based upon the evidence presented by the parties. *** Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. [Citations.]” 114 Ill. App. 3d at 54.

Here, Vernon’s conduct obviously went intolerably beyond a mere failure to present evidence. The record is incontrovertible that he contumaciously refused to comply with LaVonda’s proper discovery demands and the direct order of the trial court to produce books and records concerning any of the property at issue in this cause. As Garrett instructs us, one who purposefully places himself beyond the trial court’s writ while seeking at the same time to attack the decree that he defies is not entitled to appellate relief. We know of no authority, and Vernon cites none, that puts our judicial system at the disposition of one who shows it only rank contumacy.

Accordingly, the judgment of the circuit court is affirmed and the stay order previously entered in this appeal is hereby vacated.

Affirmed.

HARTMAN and COCCIA, JJ., concur.

       Judge Coccia fully participated in the decision of this case prior to his resignation from the court.


author: PRESIDING JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM DENNING, Defendant-Appellant.
    First District (4th Division)
    No. 1—89—3252
    Opinion filed September 5, 1991.
    Rehearing denied October 10, 1991.

      Frank Celani, of Lansing, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Sharon L. Heath, Special Assistant State’s Attorney, and Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a bench trial, the defendant, William Denning, was found guilty of criminal sexual abuse of his four-year-old granddaughter. He was sentenced to 10 weekends in the Cook County jail and one year of conditional discharge. On appeal Denning argues that he was not proved guilty beyond a reasonable doubt, that the trial court improperly admitted certain evidence, and that section 115 — 10 of the Code of Criminal Procedure of 1963 is unconstitutional. Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.

Before the commencement of the trial, the defendant filed a motion to suppress certain statements he made to the police. The trial court denied the motion. Also prior to trial, the State, pursuant to section 115 — 10 of the Code of Criminal Procedure, filed notice with the court of certain hearsay statements of the child it intended to introduce at trial. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.) Under section 115 — 10, the State, in connection with the prosecution of a defendant for a sexual act committed upon a child under 13, may under certain circumstances introduce out-of-court statements made by the child. (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.) After determining that the victim was unavailable to testify, the trial court ruled that some of the hearsay statements would be admissible, while others would not be allowed.

At trial, the parties testified that on Thanksgiving Day, November 26, 1987, the victim, her mother, Annette and the victim’s three sisters went to their grandparents’ home for dinner. When the others departed later in the day, the victim was left with her grandparents for a visit. She did not return to her own home until November 30, 1987. On November 27, the victim was in her grandparents’ home with only her invalid great-grandmother and her grandfather, the defendant.

Annette testified that on November 30, when the victim returned from visiting her grandparents, Annette was caring for her triplets and the victim went outside to play. Later in the evening, using the term “cootie,” her family’s vernacular for vagina, the victim told her mother that her vagina hurt. This initial statement was unprompted. Annette asked the victim why her vagina hurt and the victim replied that her grandfather had “played with it.” Annette took the child into the bathroom and observed that her vagina was very red, “to the point *** of being raw.” In response to her mother’s question about how the defendant had played with her vagina, the victim made a rubbing motion by her vagina and her rectal area. This testimony was admitted over the defendant’s objection that it was outside the notice the State provided prior to trial. The victim also told her mother that the defendant had stuck her with a needle in the thigh and in the vagina. Annette observed two small red dots on the victim’s thigh.

Annette arranged for her cousin to take her and the victim to the hospital that evening. On the way to the hospital, Annette told the victim that she was going to the hospital because her grandfather had played with her vagina. The victim again made a rubbing motion over her vagina and rectal area. She also stated that the defendant had held her down and punched her in the vagina. The defendant objected to this testimony again on the basis that the testimony was outside the scope of the notice the State had given prior to trial. The trial court allowed the testimony and also overruled the defendant’s objection to Annette’s further testimony that the child told her that the defendant stated he was going to break the victim’s bones and punch her in the face.

Annette testified that at the emergency room, in response to questioning by a nurse, the victim stated that her grandfather had played with her vagina about five times, that he had punched her in the vagina and that “it felt like he was pulling her stomach out,” and that he had poked her with a needle in the leg and the vagina. The victim also made a movement with her hand over her vagina and rectal area in demonstration for the nurse. The victim gave essentially similar statements to the emergency room doctor. Annette testified, as did her sister, that after the Thanksgiving visit, the victim, in contrast to her prior behavior, no longer wanted to be around the defendant and became extremely agitated at the mention of his name.

The child’s grandmother, the defendant’s wife, also testified at trial. She stated that on the day following the victim’s visit to the hospital, she told the child that she had heard that the victim had been at the hospital and asked the child what had happened. The victim pulled down her pants and made a rubbing motion over her vagina and rectal area and told her grandmother that the defendant “did this.” The grandmother noticed that the victim’s vaginal area was red.

Assistant State’s Attorney Scott Cassidy testified that when he interviewed the defendant at the police station, the defendant initially denied any improper conduct toward the victim. Later the defendant stated that he had touched the victim “in her vagina while he was giving her a bath.” He said that touching the victim’s vagina sexually aroused him and that he recognized that he had a problem for which he was going to seek professional help. On cross-examination, Cassidy acknowledged that he had kept no notes of the interview and that the defendant had not given a written statement. Cassidy also acknowledged that during the hearing on the defendant’s motion to suppress the statements to police, Cassidy had not testified that the defendant had said that touching the victim sexually aroused him.

After the State rested its case, the defendant moved to exclude the defendant’s statements to the police on the basis that the State had failed to call as a material witness Detective James Seroczynski, who was present when the defendant made the statements and who testified at the motion to suppress. The trial court denied the defendant’s motion. The defendant rested without presenting evidence and was subsequently found guilty of criminal sexual abuse.

The defendant’s first argument on appeal is that the trial court erred in allowing into evidence certain statements the victim made to Annette in the bathroom and in the car on the way to the hospital. At trial the defendant argued that the statements objected to had not been revealed to the defendant in the section 115 — 10 notice provided by the State. The defendant specifically objected to Annette’s testimony that in the bathroom the victim demonstrated with a rubbing motion over her vagina and rectal area what the defendant did to her. The defendant also objected to Annette’s testimony that in the car on the way to the hospital the child told her that the defendant had held her down and punched her in the vagina and had stated he was going to break her bones and punch her in the face. The trial court allowed the statements into evidence, finding they were admissible under the spontaneous-utterance exception to the hearsay rule. See M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.3 (5th ed. 1990).

We believe the statements in question were revealed in substance to the defendant before trial, and it was therefore not error for the trial court to admit them. Under section 115 — 10, the State was required to give the defendant “reasonable notice of [its] intention to offer the statement and the particulars of the statement.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(d).) As with other rules related to discovery, we believe that section 115 — 10(d) was designed to protect the defendant against surprise, unfairness, and inadequate preparation. (See People v. Bollman (1987), 163 Ill. App. 3d 621, 516 N.E.2d 870.) Where there has been no such prejudice, the admission of evidence is not reversible error even where the State has arguably committed a discovery violation.

In the present case, we believe the defendant was reasonably informed of the statements in issue. The record reveals that in a statement of notice pursuant to section 115 — 10, the State related to the defendant that it intended through the victim’s mother to introduce, among others, the following statements of the victim.

At 9:30 p.m. on the evening of November 30, 1987, the victim, pointing to her vagina stated to her mother: “[T]his is what Grandpa Willie did to me, he stuck me with a needle, and stuck me in the cootie too.” The victim also related that the defendant had punched her in the vagina and that it had felt like he was trying to pull her stomach out from the inside.

Later in the same evening, on the way to the hospital in the car, the victim stated: “Grandpa Willie held me down real hard, I wanted to get away.” The victim also stated that the defendant had told her he would break her bones and kill her. She also made a demonstration by rubbing over her vagina and rectal area.

While the wording and timing of the trial testimony vary slightly from the statement of notice, we do not believe that these slight deviations are significant. Nor has the defendant explained how the differences prejudiced him. Further, the testimony given at the pretrial proceeding concerning the admission of the section 115 — 10 statements was essentially that given at trial. For these reasons we believe the defendant was reasonably informed of the statements the State intended to introduce at trial, and it was not error for the trial court to admit the statements.

The defendant’s next argument is that section 115 — 10 violates the confrontation clause of the Federal Constitution in that it fails to direct the court to refrain from considering corroborative evidence in determining the reliability and trustworthiness of the statements the State seeks to introduce. Citing to Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, the defendant argues that out-of-court statements which do not fall within one of the firmly rooted hearsay exceptions must be accompanied by sufficient indicia of reliability without reference to corroborative evidence.

Under section 115 — 10, the out-of-court statements of a child under 13 relating to a sexual act committed upon that child “shall only be admitted if: (1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (2) [t]he child either: (A) [tjestifies at the proceeding; or (B) [i]s unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b).

This court must construe section 115 — 10 as not offending the Constitution if such a construction is reasonable. (People v. Geever (1988), 122 Ill. 2d 313, 522 N.E.2d 1200, appeal dismissed (1988), 488 U.S. 920, 102 L. Ed. 2d 319, 109 S. Ct. 299.) We believe that in view of the language of the statute, it is reasonable to construe section 115 — 10 as requiring that the threshold issue of the reliability of the testimony must be addressed before any corroborative evidence is considered. It is only after the court has determined that the statements are sufficiently trustworthy that it may go on to also find corroboration in the case of an unavailable witness. Under this construction, we believe that section 115 — 10 comports with the general rule of Idaho v. Wright and is not in violation of the Constitution.

The defendant further argues that in any case section 115 — 10 is unconstitutional as applied to him because it is unclear whether the trial court considered corroborative evidence concerning the condition of the victim’s vagina in ruling upon the reliability of the child’s out-of-court statements.

We believe that there is adequate basis in the record upon which the trial court could have determined that the circumstances surrounding the testimony in question were sufficient indication that the statements were reliable. In Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, the Supreme Court enumerated several factors that indicate reliability, including spontaneity, consistent repetition, the mental state of the declarant, and the terminology used by the child. In the present case, the victim made unprompted statements to her mother, she essentially repeated the statements and demonstrations on several occasions, she had in the past enjoyed a good relationship with the defendant and there was no evidence to indicate another reason for a sudden rejection of him, she was in pain when she made the statements, she was four years old, and she used a young child’s terminology in describing the events. For these reasons, we do not believe that the defendant’s constitutional rights were violated by the court’s admission of the evidence in question.

The defendant’s next argument is that the trial court erred in admitting the defendant’s statement to the police because at trial the State failed to produce the corroborating testimony of a material witness to the confession, Detective Seroczynski. At the hearing on the motion to suppress the defendant’s statement, Detective Seroczynski testified in detail to the circumstances and content of the defendant’s statement and was cross-examined by the defendant. We do not believe, as the defendant argues, that having provided Detective Seroczynski as a witness at the suppression hearing, the State was required to call him again at trial, nor has the defendant provided authority for so holding. In In re J.C. (1979), 69 Ill. App. 3d 289, 387 N.E.2d 401, the case upon which the defendant relies for support, the material witness in question had not been produced at the suppression hearing or at trial. The court in In re J.C. found that the defendant, having failed to object at the suppression hearing, had not waived his objection to the absence of the witness at trial. The court stated that the purpose of the material witness rule is to “safeguard against the use of improperly induced confessions by making all witnesses to the confession available for cross-examination.” (In re J.C., 69 Ill. App. 3d at 293, 387 N.E.2d at 404.) In the present case, the defendant had ample opportunity to cross-examine Seroczynski at the suppression hearing. He has not asserted how he was prejudiced by the inopportunity to again question the detective at trial. As such we do not believe this argument provides a basis for excluding the defendant’s statements.

The defendant further argues that his alleged statements should not have been admitted into evidence because they were uncorroborated by any other evidence at trial. Specifically, the defendant asserts that in contrast to the defendant’s alleged statements, nothing the child said indicated that anything happened to her in the bathroom while the defendant was giving her a bath.

We do not believe that the defendant’s statements stand uncorroborated. The general rule is that there must be some independent or corroborating evidence other than the confession which tends to confirm the circumstances related in the defendant’s statement. (People v. Dean (1989), 192 Ill. App. 3d 144, 548 N.E.2d 606.) In the present case, the defendant allegedly stated that he touched the vietim in her vaginal area while giving her a bath; that he rubbed the victim’s vagina. Although in the victim’s statements introduced at trial there was no mention of the location by room in which the offense occurred, the victim’s statements indicated that she was rubbed in the vaginal area, and the observation of other witnesses corroborated that the victim’s vaginal area had been abused. We believe this evidence tends to confirm the statements of the defendant. Any discrepancy that the mention of a bath creates is not so great as to affect the admission of the evidence, but rather goes to the weight to be given the statements by the trier of fact. See People v. Dodds (1989), 190 Ill. App. 3d 1083, 547 N.E.2d 523.

In his final argument, the defendant asserts that he was not proved guilty beyond a reasonable doubt. We believe that in the present case the evidence is not so improbable as to justify a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.) The evidence indicates that the victim was in her grandparents’ home for several days. During that time, on one occasion she was left with only her invalid, elderly great-grandmother, and the defendant. Thereafter the victim became afraid and agitated at the mention of defendant. The victim made repeated and consistent statements about the defendant poking and rubbing her vagina which the trial court determined were reliable. At the same time, the victim’s mother and grandmother observed that the child’s vagina was raw and red. The defendant stated that he touched and rubbed the victim’s vagina. Viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267.

For these reasons, we affirm the ruling of the trial court.

Affirmed.

LINN and McMORROW, JJ., concur.


author: JUSTICE LaPORTA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY WILDER, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—1511
    Opinion filed September 6, 1991.
    Randolph N. Stone, Public Defender, of Chicago (Frank Madea, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and David R. Butzen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant Timothy Wilder was convicted in a bench trial of aggravated criminal sexual assault and sentenced to eight years in prison. Defendant appealed the conviction, raising a single issue on review: whether the information charging him was fatally defective because it failed to set out a specific mental state and the criminal conduct alleged.

The facts adduced at trial establish that on January 20, 1987, the 10-year-old victim, T.R., went to defendant’s home so that defendant’s sister could baby-sit her after school. On that day defendant, 17, was at the home when T.R. arrived around noon. The victim testified that defendant pulled down her jogging pants and placed his penis in her anus. Defendant was charged in a four-count information with two counts of aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse. Defendant was found not guilty of aggravated criminal sexual abuse in count IV, which alleged vaginal penetration. He was found guilty of count I, aggravated criminal sexual assault alleging anal penetration. Counts II and III, for aggravated criminal sexual assault and criminal sexual assault, were merged into count I.

Defendant appealed the conviction, contending that the charging information was fatally defective for two reasons: the charging instrument failed to specify a mental state for the underlying criminal conduct of aggravated criminal sexual assault and failed to specify what conduct other than “sexual penetration” was criminal.

Count I of the information upon which defendant was convicted stated:

“That on or about January 20, 1987 *** Timothy Wilder committed the offense of aggravated criminal sexual assault in that he was 17 years of age or over and committed an act of sexual penetration upon [T.R.], to wit: contact between Timothy Wilder’s penis and [T.R.]’s anus, and [T.R.] was under 13 years when the act of sexual penetration was committed, in violation of Chapter 38, Section 12 — 14 B(l) of the Illinois Revised Statutes 1985, as amended.”

Illinois law sets forth the requirements for a charging instrument stating, in pertinent part that: “A charge shall be in writing and allege the commission of an offense by: (1) Stating the name of the offense; (2) Citing the statutory provisions alleged to have been violated; (3) Setting forth the nature and elements of the offense charged; (4) Stating the date and county of the offense as definitely as can be done; and (5) Stating the name of the accused ***.” Ill. Rev. Stat. 1985, ch. 38, par. 111 — 3.

An information which does not set forth the nature and elements of the crime sought to be charged fails to state an offense and is subject to dismissal. People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810.

Initially we must consider what is the appropriate standard of review. Defendant contends that the sufficiency of the charging instrument was attacked at trial and therefore the appropriate standard is whether the document sets forth with accurate specificity the nature of the offense charged in accordance with section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. Ill — 3(a)(3)). When this issue is raised in the trial court either as a motion to dismiss or a motion in arrest of judgment, the information must be scrutinized to determine whether it conforms to the statutoiy requirements of section 111 — 3. People v. Thompson (1984), 125 Ill. App. 3d 665, 672.

When the information is attacked for the first time on appeal, a reviewing court will consider the complaint sufficient if it apprises the accused of the precise offense charged with sufficient specificity to prepare his defense and to allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437; see also People v. Miller (1983), 116 Ill. App. 3d 361, 367-68, 452 N.E.2d 391.

The State contends that defendant did not object to the information defining the offense of aggravated criminal sexual assault until the appeal. Nowhere in the record is there evidence that defendant challenged the sufficiency of the indictment before the trial court. At trial, Wilder defended on the charges as originally framed. Only after having been convicted does defendant now challenge the information. Defendant’s brief before the appellate court refers to several places in the record, including defendant’s post-trial motion seeking “a new trial and/or for arrest of judgment.” But none of these references, including the post-trial motions, demonstrates a challenge to the sufficiency of the indictment.

Therefore, the appropriate standard for review is that articulated in Pújeme: whether defendant was apprised of the precise offense charged with sufficient specificity to prepare his defense and to bar prosecution in the future for the same conduct.

Reviewing under this standard, we first consider defendant’s contention that the information charging him with aggravated criminal sexual assault failed to specify a mental state and therefore was fatally defective.

Illinois law is settled in this area. The crime of aggravated criminal sexual assault is a general intent crime and does not require the allegation of a specific mental state. (People v. Leonard (1988), 171 Ill. App. 3d 380, 384, 526 N.E.2d 397, 400.) An indictment charging an accused is not defective for failure to allege the defendant’s mental state where the statute defining the offense charged did not include a specific mental state. Leonard, 171 Ill. App. 3d at 384.

Defendant cites to People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810, but this case dealt with a person charged with mob action who challenged the sufficiency of the complaint by a motion in arrest of judgment. Grant is distinguishable from this case. The crime of mob action requires the person charged with the offense to act intentionally, knowingly or recklessly and therefore a charge of mob action requires the pleading of the requisite mental state. (Grant, 101 Ill. App. 3d at 46.) Here, defendant was charged with aggravated criminal sexual assault, which is a general intent crime and does not require a specific mental state for conviction. (Leonard, 171 Ill. App. 3d at 384.) He did not challenge the sufficiency of the indictment until he appealed his conviction.

The Leonard case is controlling. We find no error in the lack of an alleged mental state in defendant’s information charging him with aggravated criminal sexual assault.

Finally, we consider defendant’s contention that the information failed to allege with specificity the conduct which constituted aggravated criminal sexual assault.

Under State law, defendant committed aggravated criminal sexual assault if he committed criminal sexual assault and “during the commission of the offense *** [he] was 17 years of age or older and [he] committ[ed] an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14.) A person commits criminal sexual assault if he or she: “(1) commits an act of sexual penetration by the use of force or threat of force; or (2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.” Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13.

Sexual penetration is defined in the statute as: “any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunniligus, fellatio or anal penetration.” Ill. Rev. Stat. 1985, ch. 38, par. 12 — 12(f).

Defendant argues that the “wording of the information does not reasonably provide an inkling as to what conduct *** provided the basis for criminal conduct.” The information alleges that on January 20, 1987, defendant committed the following conduct: “an act of sexual penetration upon [T.R.], to wit: contact between Timothy Wilder’s penis and [T.R.]’s anus and [T.R.] was under 13 years when the act of sexual penetration was committed.”

Where a statute sufficiently defines the crime, an indictment or information will be deemed sufficiently technical and correct if it states the offense in the terms and language of the statute creating the offense or so plainly that the defendant is apprised of the charge against him. People v. Lutz (1978), 73 Ill. 2d 204, 211, 383 N.E.2d 171; see also People v. Plocar (1952), 411 Ill. 141, 144, 103 N.E.2d 612.

Here, the language in the information followed the language of the statute item for item on the conduct required. Under the standard articulated in Pujoue, we find defendant was apprised of the precise offense charged with sufficient specificity to prepare his defense and to bar prosecution in the future for the same conduct.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. UNITED STATES CURRENCY $3,108, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—1825
    Opinion filed September 6, 1991.

      Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Guy L. Miller IV, and Margaret I. Iwerebon, Assistant State’s Attorneys, of counsel), for the People.
    Gibson, Steinback & Gillespie, of Chicago (Marc W. Martin, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

After a bench trial, the State’s complaint for forfeiture of seized currency was denied. (Ill. Rev. Stat. 1987, ch. 56V2, par. 1505.) On appeal, the State contends that the trial court’s decision was against the manifest weight of the evidence.

The forfeiture complaint alleged that the State had confiscated $3,108 from Scott Falcone because that currency was used or intended to be used to facilitate the violation of the Controlled Substances Act on August 25, 1987. (See Ill. Rev. Stat. 1987, ch. hQVz, par. 1505(a)(5).) The complaint prayed that the seized currency be declared contraband and forfeited and that Falcone’s interest in the currency be terminated.

In his answer Falcone denied that he was in possession of a controlled substance on August 25. He admitted that on that date he possessed the money seized by the law enforcement officers. He further admitted that certain controlled substances were seized on that date at that address but denied the drugs were in his possession. He denied the money was subject to forfeiture and prayed its return to him and dismissal of the complaint.

Chicago police officer James Ahern testified at the forfeiture proceeding that on August 25, 1987, he executed a search warrant at 10731 Lloyd Drive in Worth, Illinois. The search warrant named “Falcone” at that address. After he entered the apartment, he first encountered defendant’s mother and sister. While Ahern was searching a bedroom in the apartment, defendant entered the apartment and stated that “the bedroom was his. Everything in the bedroom was his.” Ahern testified that defendant opened a portable safe in the bedroom which contained “an amount of United States currency, narcotics paraphernalia, containing — consisting of a scale, grinder, spoons *** $3,108 in U. S. currency, a large plastic bag containing about 4 or 5 ounces of white powder and some jewelry.”

Ahern admitted on cross-examination that the plastic bag of white powder recovered from the safe did not test positive for cocaine. He testified he also recovered three pockets of cocaine totalling .89 grams from the hamper in the common bathroom used by all persons in the apartment. From Falcone’s person he recovered a key ring with keys to the apartment but did not recall recovering any money from defendant or from his dresser. Ahem acknowledged that his report did not indicate that narcotics paraphernalia was found in the safe. He also acknowledged that his report listed an estimated total weight of 16 grams for the powder seized from the safe and the three packets of cocaine from the hamper.

The trial court found that the evidence failed to establish that the white powder was a cutting agent to be used in preparation of narcotics for sale. The judge stated: “You have a scale. A grinder — they’re not narcotics paraphernalia unless they’re used, the person sees them grinding narcotics or weighing drugs *** they’re equivocal objects until they acquire a secondary meaning. *** The evidence shows *** drugs present in the hamper, monies in the locked safe ***.” The trial court concluded that the evidence did not show any nexus between the money found in the safe and cocaine found in the hamper and denied the forfeiture petition.

The State filed a motion to reconsider based on the close proximity of the cocaine packets in the hamper and the money in the safe even though bedroom and bathroom were “one room away from each other.” The State also argued the close proximity of the white powder and narcotics paraphernalia and money all in the safe that had to be opened by defendant established a presumption in favor of the State which defendant has not rebutted and that the State therefore had proved a prima facie case. The defendant responded that there was no evidence that the powder in the safe was a cutting agent, that the cocaine was found in the hamper in a common bathroom used by all three people living in the apartment, and that there was no evidence of cocaine residue on the grinder or scale and therefore no nexus between the cocaine from the hamper and the scale, grinder and currency from the safe.

In denying the motion to reconsider, the court stated:

“In the safe *** are three equivocal objects, a scale, there is powder, *** a grinder, and if there were any drugs in there, those can be construed to be drug paraphernalia. Absent any evidence of [sic] the contrary, they are just equivocal objects maybe to be used in the drug business but they are not drug paraphernalia ***.”

He found that because small amounts of drugs were found in the hamper in the common bathroom used by all three people no person was shown to be in possession of those drugs. The court found:

“[T]here is no nexus between the drugs at [sic] which nobody has possession and equally accessible to many people, and the money that was locked in the safe, which is accessible to one particular person, where there is no drug paraphernalia.”

Upon appeal plaintiff contends that the trial court erred in denying its forfeiture complaint because the State adequately raised the presumption that the funds were forfeitable, and Falcone failed to rebut this presumption.

Section 505(a)(1) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1987, ch. hQMz, par. 1505(a)(5)) reads in pertinent part:

“(a) The following are subject to forfeiture:
* * *
(5) everything of value furnished or intended to be furnished, in exchange for a substance in violation of this Act, *** and all moneys *** used, or intended to be used, to facilitate any violation of this Act ***. All moneys, coin and currency found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distributing paraphernalia *** are rebuttably presumed to be forfeitable under this Act.”

Forfeiture proceedings are in rem and therefore civil in nature. (People v. Ziomek (1989), 179 Ill. App. 3d 303, 306, 534 N.E.2d 538; People ex rel. Power v. One 1979 Chevrolet Camaro (1981), 96 Ill. App. 3d 109, 112, 420 N.E.2d 770.) The State must prove its right to the items by a preponderance of the evidence, and the trial court’s decision will be upheld unless contrary to law or contrary to the manifest weight of the evidence. (People v. Ziomek, 179 Ill. App. 3d at 306.) Derivative contraband consists of property which is innocent in itself but which has been used in the perpetration of an illegal act, e.g., cash derived from the sale of illegal drugs. People v. Ziomek, 179 Ill. App. 3d at 307; In re $53,263 (1987), 159 Ill. App. 3d 114, 118, 512 N.E.2d 740, 742.

In People v. Snyder (1977), 52 Ill. App. 3d 612, 615, 367 N.E.2d 752, money was found in a locked cabinet along with a record book of a marijuana distributing operation. Defendant admitted ownership of the book and participation in certain transactions and forfeiture was affirmed.

In People v. Ziomek (179 Ill. App. 3d 303), the State seized a quantity of unregistered weapons and ammunition from defendant. The trial court denied the forfeiture petition, found the defendant had a property right in the seized weapons but could not lawfully possess them in Chicago and ordered them returned to defendant outside the city limits. The reviewing court reversed the trial court, finding the weapons to be contraband per se and subject to forfeiture.

The court in People ex rel. Daley v. $9,403 (1985), 131 Ill. App. 3d 188, 192, 476 N.E.2d 80, affirmed the trial court’s order of forfeiture finding that defendant failed to rebut the statutory presumption established by the State’s evidence that money found in close proximity to controlled substances was subject to forfeiture, specifically finding that defendant’s credibility was in question and that in her testimony she had failed to show that the money was from sources other than narcotics. The appellate court opinion states that the search of defendant and of her single-family home was pursuant to warrant, but the opinion does not indicate that any other person resided or had access to the home or to the kitchen where the drugs were found and the bedroom in which the money and alleged drug paraphernalia were found.

In affirming the trial court’s order of forfeiture, the reviewing court in People v. Strong (1986), 151 Ill. App. 3d 28, 34, 502 N.E.2d 744, enunciated as the standard on review that the State must prove the nexus between forfeitable property and the contraband by a preponderance of the evidence as required in civil cases rather than beyond a reasonable doubt. The court then stated that on review the trial court’s judgment will not be reversed unless its ruling is against the manifest weight of the evidence. (People v. Strong, 151 Ill. App. 3d at 34.) The defendant permitted narcotics officers to search his home and voluntarily opened a master bedroom floor safe where they found $9,273 in cash and a single pill of Phentermine, a controlled substance. In the bedroom they also found drug paraphernalia and small amounts of cocaine. They also found 20 guns in the house. Defendant was arrested for theft and drug possession. He was searched, and police found 0.3 grams of cocaine and $1,200 cash in his shirt pocket. In response to the State’s evidence at the forfeiture hearing, defendant testified that the money in the safe was from monthly payments he received from the sale of his business and the money in his shirt pocket was intended for the purchase of an all-terrain vehicle for his son for Christmas. The trial court rejected defendant’s testimony on credibility grounds, found the State had proved a sufficient nexus between the cash and illegal substances and found the cash was forfeitable. The appellate court found that the trial judge’s ruling was not against the manifest weight of the evidence and affirmed.

However, in In re $27,444 (1987), 164 Ill. App. 3d 44, 48, 517 N.E.2d 704, the court stated that as a general rule forfeitures are disfavored at law and that statutes authorizing them must be construed strictly in a manner as favorable to the person whose property is seized as is consistent with fair principles of statutory interpretation. The court found that “[t]he purpose of the broad-sweeping forfeiture provision is to control illegal trafficking in controlled substances [citation], not to divest persons of all currency that happened to come into contact with controlled substances at some earlier point in time. The presumption that arises when currency is found in close proximity to a forfeitable substance is that the currency is derivatively forfeitable— i.e., it was used ‘in exchange for a substance in violation of [the] Act.’ [Citation.] Clearly, the legislature intended the presumption to apply to situations where observable controlled substances or distributing paraphernalia, etc., are found in near proximity to currency. However, a presumption cannot be based upon a presumption or an inference where the undisputed facts may give rise to different reasonable inferences.” (In re $27,440, 164 Ill. App. 3d at 48.) The court affirmed the trial court’s denial of the forfeiture petition, finding that the State’s evidence that a residual amount of cocaine found on one bill in a bag of 969 bills of paper currency does not establish where or when the bills were in close proximity to cocaine and therefore the State failed to establish the required nexus between the currency and the contraband to support a forfeiture. In re $27,440, 164 Ill. App. 3d at 48.

In In re $53,263 (1987), 159 Ill. App. 3d 114, 512 N.E.2d 740, the reviewing court held that the burden of proving a right to seized money by forfeiture was on the State. The State had the burden to prove that the money was used, or intended for use, in violation of the Cannabis Control Act (Ill. Rev. Stat. 1985, ch. 56V2, par. 712(a)(4); In re $53,263, 159 Ill. App. 3d at 119). Once the State has met its burden and established a prima facie case for forfeiture, the party claiming return of the seized funds must present evidence to rebut the State’s case. The defendant in In re $53,263 testified at the forfeiture hearing. The trial court entered an order of forfeiture finding that although the defendant Davis had borrowed the money for purposes unrelated to any violation of the Cannabis Control Act, he was the renter and was in the apartment on the day of the arrest, and the marijuana was found in the apartment; therefore, it was reasonable to infer he was in possession of marijuana. The appellate court reversed, finding that defendant’s uncontradicted and corroborated evidence as to the source of the funds refuted the statutory presumption that the money was used for an illegal narcotics purpose. In re $53,263, 159 Ill. App. 3d at 119.

Only Officer Ahern testified for the State. Defendant did not testify at trial. Ahern testified that defendant told him that everything in the bedroom and in the safe was his property, including the seized currency and the white powder, scale and grinder, characterized by Ahern as equipment commonly used in weighing and processing illegal drugs. Ahern’s reports prepared at about the time of defendant’s arrest and the confiscation of the drugs, currency and other evidence made no reference to any statements made by the defendant at the time of the search.

The court specifically found:

“As far as the statements are concerned, if they’re not in the reports, they don’t have any credibility. The evidence does not show there is any nexus between the money found in the safe and cocaine found in the hamper.”

In effect the judge made a factual finding that the drugs recovered from the hamper were not proved by a preponderance of the evidence to have been within defendant’s exclusive control. Three persons resided in the apartment and all had access to the bathroom and the hamper. We will not disturb that finding.

The court also made a specific factual finding that the scale, grinder and powder found in the safe with the currency were equivocal objects and were not proven to be drug paraphernalia. The court then made a factual finding that the evidence did not show any nexus between the money found in the safe and any drug paraphernalia or the cocaine found in the hamper. We will not disturb these findings.

Where the trial court’s findings as to the credibility of the testimony is not clearly erroneous, a reviewing court will not review those findings. (People v. Pittman (1984), 126 Ill. App. 3d 586, 592, 467 N.E.2d 918, 924.) Defendant conceded that the safe and its contents belonged to him. His bedroom was a separate room but was in close proximity to the hamper in which Ahern found the drugs. However, other persons also had access to the bathroom and the hamper.

We conclude that the State has failed to establish a prima facie case for the forfeiture requested and that the trial court’s determination that the State had failed to show any nexus between the money found in the safe and the drugs found in another room commonly used by defendant and other persons is supported by the evidence.

For the above reasons, the order of the circuit court of Cook County denying the petition for forfeiture is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE McNAMARA

text:
      In re ESTATE OF CELIA F. KAPLAN, Deceased (Abraham Agran, Co-Ex’r of the Estate of Celia F. Kaplan, Petitioner-Appellee, v. Joel B. Furlett et al., as Co-Ex’rs of the Estate of Arthur Furlett, Respondents-Appellants (Franklin J. Furlett et al., Intervening Petitioners-Appellees)).
    First District (6th Division)
    Nos. 1—90—1444, 1—90—2499 cons.
    Opinion filed September 6, 1991.

      Lindenbaum, Coffman, Kurlander, Brisky & Hayes, Ltd., of Chicago (Leon E. Lindenbaum, of counsel), for appellants.
    Katz, Randall & Weinberg, of Chicago (Jeffrey H. Bunn, of counsel), for appellees Franklin J. Furlett, June Kerstein, Rochelle Goldsholl, and Esther Furlett.
    Agran & Agran, Ltd., of Chicago (Martin S. Agran, of counsel), for other appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

This consolidated appeal, which arises out of the probate of the estate of Celia Kaplan, presents the following issues: (1) whether a 1937 will constituted a joint and mutual will; and (2) whether a joint account established by Celia Kaplan was proved to have been a joint tenancy of convenience rather than a true joint tenancy.

On December 9, 1937, Morris and Celia Kaplan executed a one-page testamentary instrument which provided in its entirety as follows:

“LAST WILL AND TESTAMENT OF MORRIS A. KAPLAN AND CEL F. KAPLAN
KNOW ALL MEN BY THESE PRESENTS that we Morris A. Kaplan and CeL E Kaplan, husband and wife, both residing in the City of Chicago, County of Cook and State of Illinois, and being of sound and disposing mind and memory and both being of lawful age, do make, publish and declare this instrument to be jointly as well as severally our last will and testament, hereby revoking all former wills.
FIRST: We direct all just debts and funeral expenses to be fully paid.
SECOND: We direct that all of our property, both real and personal, at the time of the death of either of us, shall be held by the survivor during his or her life time, the use and income thereof, to be enjoyed by such survivor as he or she shall deem best during the remainder of the life of such survivor.
THIRD: At the death of the survivor, after all funeral expenses and debts have been paid, the above property shall be distributed as follows:— To the parents of Morris A. Kaplan, namely Eva Kaplan and David Kaplan and the parents of Cel E Kaplan, namely Sarah Furlett and Joseph Furlett, in equal shares, to share and share alike during their life time and in the event that they do not survive, then it is to pass to their heirs in proportion to their shares.
FOURTH: Lastly we constitute and appoint Nathan J. Kaplan and Irwin R. Furlett to be the executors of this our last will and testament hereby revoking all former wills by us made and it is our expressed wish that said executors be appointed to act without bond.
IN WITNESS WHEREOF, we have hereunto set our hand and seal this 9th day of December A.D., 1937.
I si Morris A. Kaplan
Isi Celia F. Kaplan”

Morris Kaplan died on January 6, 1977, leaving no surviving descenderás, and the 1937 will was admitted to probate in the circuit court of Cook County. On September 14, 1985, Celia executed a duly witnessed will, which purported to revoke the 1937 will. The introductory paragraph of the 1985 will stated: “I, Celia F. Kaplan, Chicago, Illinois, make this my last will and revoke all former wills and codicils by me made.” The 1985 will gave half of the residuary estate to her husband’s brothers, sisters, nieces and nephews. The 1985 will gave the remaining one-half of her estate, valued in excess of $1 million, to Arthur Furlett, her only surviving sibling, and made nominal bequests to her nieces and nephews, including Rochelle Goldsholl, Franklin Furlett, Jr., June Kerstein, Norman Furlett and Joel Furlett, who are parties in this case. The 1937 will, by contrast, gave Arthur Furlett about one-eighth of the estate. The 1985 will also made several charitable bequests that were absent in the 1937 will.

Celia died in June 1988 and her 1985 will was admitted to probate on August 25, 1988. The intervening petitioners (petitioners) subsequently filed a supplementary proceeding to enforce the 1937 will and a summary judgment motion that the 1937 will was a joint and mutual will that was irrevocable after Morris’ death. Petitioners are Celia’s heirs, who are legatees under the 1937 will: Franklin J. Furlett and Rochelle Goldsholl (children of Celia’s deceased brother, Frank Furlett); June Kerstein (child of Celia’s deceased brother, Irwin); and Esther Furlett (wife of deceased brother, Sanders Furlett). Abraham Agran, co-executor of Celia’s estate, is also a petitioner.

Respondents (Joel B. Furlett, Norman Furlett, Annette Furlett and Leon Lindenbaum as co-executor of the estate of Arthur Furlett) opposed petitioners’ summary judgment motion on the ground that the 1937 will failed to satisfy the criteria for a joint and mutual will under Illinois law. They argued that the language of the 1937 will was ambiguous, and, therefore, summary judgment was inappropriate. After a hearing, the court entered summary judgment that the 1937 document was a joint and mutual will which became irrevocable by Celia Kaplan upon the death of Morris Kaplan. Respondents appeal from this order.

In the second case, consolidated here on appeal, petitioner Abraham Agran, co-executor of Celia’s estate, filed a citation petition in the circuit court of Cook County requesting that a joint savings account in the approximate sum of $182,000 be added to the estate’s inventory. The account was in the names of Celia Kaplan and Arthur and Joel Furlett. The following evidence was adduced at the March 14, 1989, evidentiary hearing to determine whether the money in the joint account at First Chicago belonged to Celia’s estate or to respondents as surviving joint tenants.

Bonnie Clyde, account executive at First Chicago, testified that after speaking with Arthur Furlett and Celia, Clyde added Arthur and Joel Furlett as signatories to Celia’s account to help her pay her bills. Clyde testified that she did not specifically remember talking to Celia, but that it was her “normal business procedure” to explain the different options to a client either verbally or via a “detailed letter” before issuing new signature cards. Clyde testified that she discussed with both Celia and Arthur Furlett the different options for adding signatories, including the power of attorney and the joint tenancy. She explained to them that a power of attorney grants another the power to sign on the owner’s behalf, which power ceases upon death. After speaking with Celia, Clyde filled out the cards per Celia’s request, then sent the completed cards to Celia for her signature, enclosing a handwritten note which stated in relevant part as follows:

“To change the title on your checking account, you and the two new signers will need to each sign both of the enclosed cards next to your name. You should each also verify and complete the personal information about each of you. Please just return these cards *** to add the two new co-signers and I will take care of the rest ***.”

Clyde testified that although she does not specifically recall, she “assumes” that she spoke with Celia because she did not write a longer, more detailed letter explaining the differences between joint tenancy and power of attorney accounts.

Celia signed the cards and returned them to Clyde with the following note, drafted by Arthur and signed by Celia:

“Enclosed are the cards that you recommended — I am confirming both my brother Arthur M. Furlett and his son Joel B. Furlett to sign check [sic] on my current checking account.”

Petitioner offered no evidence that demonstrates the source of the funds in the joint account at First Chicago. A statement introduced at the hearing indicated that as of January 24, 1989, the balance of the account was $227,788.28 with a 4.7% rate of interest. In April 1988, Celia also held two certificates of deposit and a savings account of $175,000 at First Chicago.

Cathy Vellios, employee of the Peterson Bank, where Celia also held a checking account, testified that she spoke with both Arthur Furlett and Celia in April 1988. As a result of these conversations, Vellios added two new signatories, Arthur and Joel Furlett, to Celia’s checking account. No request was made to transfer the account to joint ownership.

The parties stipulated that: at the time of Morris’ death in January 1977, the estate’s net value after taxes was $1,100,000; during the period from his death in 1977 to Celia’s death in June 1988, the estate’s assets and property generated about $1,039,000; Celia also received approximately $125,000 net in social security and pension payments during this period, but earned no other income. The record also established that between September 1985 and March 1988, Celia gave respondent Joel Furlett and his wife a total of $45,050.

After a hearing, the trial court in an oral opinion rendered July 20, 1990, found that the presumption of a gift arising from the joint account was overcome by clear and convincing evidence and, accordingly, found in petitioner’s favor, that joint account funds were an asset of Celia’s estate. The court stated that it lacked sufficient evidence to determine whether the funds in the joint account represented principal or income, commenting that if they represented principal, the creation of the account would violate the joint and mutual will, if valid. The court entered a written order pursuant to these findings on August 1, 1990. Respondents (Norman Furlett, Joel Furlett and Leon Lindenbaum, as co-executor of the estate of Arthur Furlett) appeal.

The issue on appeal in the first case is whether the trial court properly entered summary judgment that the 1937 testamentary instrument was a joint and mutual will which became irrevocable upon Morris’ death. Respondents do not dispute that the 1937 instrument is a joint will, but claim that the will does not unambiguously establish that the testators intended it to be joint and mutual. We conclude that the trial court correctly determined that it was a joint and mutual will and accordingly affirm its decision.

A trial court is required to ascertain the intent of the testator, and our concern on appeal is whether the trial court’s construction accomplished the testator’s intention. (King v. Travis (1988), 170 Ill. App. 3d 1036, 524 N.E.2d 974.) Moreover, when the four corners of the document reveal no ambiguity about the testator’s intentions, the trial court may properly enter summary judgment. (See Young v. Young (1991), 210 Ill. App. 3d 912, 569 N.E.2d 1; King v. Travis, 170 Ill. App. 3d 1036, 524 N.E.2d 974.) A joint and mutual will is a single testamentary instrument which contains the wills of two or more persons, executed jointly, and requires the survivor to dispose of the property according to the will’s provisions. (Young v. Young, 210 Ill. App. 3d 912, 569 N.E.2d 1.) Our courts in determining whether a will is joint and mutual have recognized various guidelines, including the following five distinguishing characteristics:

“First, the court looks to the label the testators have assigned to the will. Second, the court looks to the use by the testators of common plural terms such as ‘we’ and ‘our’ as further evidence of the testators’ intent to make a joint and mutual will. Third, the court looks for a pooling of the testators’ interests. Fourth, the court looks for reciprocal provisions in the will; whether the testators made a disposition of the entire estate in favor of the survivor of them. Finally, the court looks for a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares.” (King v. Travis (1988), 170 Ill. App. 3d at 1042, 524 N.E.2d at 978-79.)

Although courts commonly use these five characteristics of joint and mutual wills as guidelines, each case must be viewed individually. (In re Estate of Signore (1986), 149 Ill. App. 3d 904, 501 N.E.2d 282; Rauch v. Rauch (1983), 112 Ill. App. 3d 198, 445 N.E.2d 77.) Indeed, this court in Signore considered several other criteria in addition to those indicated in Rauch, noting that the Rauch court’s list of common characteristics was not “exclusive.” Signore, 149 Ill. App. 3d at 908, 501 N.E.2d at 284.

Applying the foregoing principles, we conclude that the 1937 document was a joint and mutual will. As to the first trait, the parties did not anywhere refer to the document as their “mutual will” or their “joint and mutual will,” nor do any of the paragraphs use the word “mutual” in referring to the instrument. However, we are not precluded from finding an instrument to be a joint and mutual will merely because it lacks such label. (See In re Estate of Arnold (1986), 142 Ill. App. 3d 258, 491 N.E.2d 458; In re Estate of Schwebel (1985), 133 Ill. App. 3d 777, 479 N.E.2d 500.) Moreover, even though the preamble defines the will as “jointly as well as severally our last will and testament,” such terminology need not alter our conclusion that the parties intended to create a joint and mutual document. In Arnold, this court found a will to be joint and mutual despite use of the word “severally” in the instrument. The court relied upon the equal treatment of each side of the family, noting that it “would not be logical to consider that the testator intended to give the survivor the power to upset the scheme by a contrary testamentary disposition merely because he used the word severally in the instrument.” (Arnold, 142 Ill. App. 3d at 263-64, 491 N.E.2d at 462.) As in Arnold, the testators here obviously provided for equal treatment of both families and, as such, their inclusion of the term “severally” does not render their intent ambiguous.

Second, the testators used plural terms throughout the will, such as “we direct,” “we appoint,” “we constitute,” “our property,” “our last will,” “our expressed wish,” and “death of either of us.”

Third, the following language directs the pooling of the parties’ interests into a common fund: “We direct that all of our property, both real and personal, at the time of the death of either of us, shall be held by the survivor during his or her life time, ***.” This clause gives the surviving spouse a life estate in all of the property covered under the will, thereby pooling the parties’ interests into a common fund.

Fourth, the will contains reciprocal provisions as indicated in the second paragraph, which provides for reciprocal development of the property depending on their respective deaths. King v. Travis, 170 Ill. App. 3d 1036, 524 N.E.2d 974.

Finally, the will disposes of the common fund through a common dispositive scheme which gives Celia’s and Morris’ heirs approximately equal shares of the property owned by the testators. The third paragraph distributes all of their property to their parents “in equal shares,” if they survive, or to their heirs “in proportion to their shares.”

Respondents maintain that the will does not satisfy this criterion because it fails to limit the survivor’s use of the property, and therefore lacks a common distributive scheme, relying on King v. Travis. Rather, respondents contend that the will gives the survivor the right to “invade the corpus for life.” We disagree with respondents’ reading of the will and their reliance on King.

In King, this court affirmed the trial court’s entry of summary judgment determining that the testamentary document did not create a common distributive scheme and, therefore, was not a joint and mutual will. The will in King gave the survivor all property in “Fee Simple Absolute Forever.” According to the King court, such language unambiguously gave the survivor the power to “dispose of the entirety of the will’s bounty.” (King, 170 Ill. App. 3d at 1043, 524 N.E.2d at 979.) We find King distinguishable on this point. Paragraph two of the will in this case provides that all property covered under the will “shall be held by the survivor during his or her life time, the use and income thereof, to be enjoyed by such survivor as he shall deem best during the remainder of the life of such survivor.” (Emphasis added.) Respondents maintain that, under King, this language shows an intention to give the survivor the absolute right to expend or consume all of the property during his or her lifetime. We disagree. The language allows the survivor to enjoy only “the use and income” of the property as he so chooses during his lifetime. However, the language explicitly directs the survivor to hold the property during his lifetime. The survivor’s right to enjoy the property as he “deems best” extends only to the “use and income” of the property during the survivor’s lifetime. We do not believe that this language gave the survivor the right to dispose of the property entirely. Rather, we believe this language shows the parties’ intention to create a life estate in the property for the survivor. (See Gaston v. Hamilton (1982), 108 Ill. App. 3d 1145, 440 N.E.2d 190.) By contrast, the will in King unambiguously created a fee simple interest in the survivor.

King is also distinguishable because there the only legatees were the husband’s heirs, namely his son and daughter by women other than the testator wife. The will did not divide property equally between the parties’ families. By contrast, the Kaplans’ will distributes the property to both testators’ heirs in approximately equal amounts. Cf. Buettner v. Rintoul (1990), 195 Ill. App. 3d 874, 553 N.E.2d 6.

We also find Larison v. Record (1987), 117 Ill. 2d 444, 512 N.E.2d 1251, instructive. In Larison, our supreme court concluded that the testators intended to give the survivor the “unfettered right” to decide the estate’s disposition after the survivor’s death, relying upon the provision which passed the estate to the survivor “to be his or her sole and absolute property forever.” (Larison, 117 Ill. 2d at 452, 512 N.E.2d at 1254-55.) The court stated that this language created a fee simple interest and demonstrated that the testators intended to give the survivor the right to determine the estate’s distribution. Unlike Larison, the testators’ creation of a life estate in the survivor here belies respondents’ contention that the testators intended to give the survivor the right to dispose of the property during his lifetime. For the foregoing reasons, we reject respondents’ argument that the will lacked a common dispositive scheme.

Respondents also maintain that the will is not joint and mutual because it does not contain an agreement of mutuality or an agreement that revocation was not to be made without the consent of both testators, relying on In re Estate of Signore. In Signore, this court upheld the trial court’s conclusion that the parties’ will was not joint and mutual. The court relied on the introductory paragraph, which provided a “full reservation by both or either of us to change the terms hereof at any time.” (Signore, 149 Ill. App. 3d at 908, 501 N.E.2d at 285.) The Signore court found that this language evidenced the parties’ intent to keep the will revocable at any time. Such express reservation of the power to revoke is absent here and distinguishes Signore from this case. Close scrutiny of the second and third paragraphs of the will here reveals that the will was intended to be irrevocable upon the death of either of the testators. Paragraph two directs that all property possessed at the time of the death of one of the testators becomes the survivor’s property, and paragraph three directs the property division to both families upon the survivor’s death. From these provisions, it is apparent that the testators did not intend to give the survivor the power to revoke the will. (In re Estate of Arnold, 142 Ill. App. 3d 258, 491 N.E.2d 458.) Moreover, the will’s provision for equal treatment of the testators’ families is further evidence that the testators did not intend to give the survivor the power to alter the disposition. In re Estate of Arnold, 142 Ill. App. 3d 258, 491 N.E.2d 458.

In summary, the testators here made dispositions in favor of each other, pooled their interests, created a common dispositive scheme giving their respective families equal shares, and used common plural terms throughout the will. Based upon the existence of the five characteristics in the will, we are persuaded that the trial court correctly concluded that the instrument unambiguously established that Celia and Morris intended to make a joint and mutual will and accordingly entered summary judgment in petitioners’ favor.

We next consider whether the trial court properly granted petitioner’s citation to recover the proceeds of Celia’s checking account at First Chicago. On appeal, respondents (Joel B. Furlett, Annette Furlett and Leon Lindenbaum, co-executors of Arthur Furlett’s estate) argue that petitioner failed to establish by clear and convincing evidence that Celia did not intend to create a joint tenancy. Additionally, respondents maintain that if the 1937 will was a valid, joint and mutual will, the creation of the joint account did not violate the 1937 will. We need not consider the latter contention because we hold that the evidence overcame the presumption of gift.

The transfer of property into joint tenancy creates a presumption of a valid gift to the surviving joint tenant. (In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 388 N.E.2d 431.) This presumption is not conclusive, but one who challenges the gift must present clear and convincing evidence of the absence of donative intent. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470.) In determining whether the donor intended to transfer his interest at death to the surviving joint tenant, the court may consider the facts surrounding the creation of the account. (In re Estate of Schneider (1955), 6 Ill. 2d 180, 127 N.E.2d 445.) Moreover, evidence that the deceased created the account for his mere convenience indicates lack of donative intent. (In re Estate of Elliott (1975), 33 Ill. App. 3d 1046, 339 N.E.2d 378.) The form of the agreement is not conclusive regarding the parties’ intentions (In re Estate of Schneider, 6 Ill. 2d 180, 127 N.E.2d 445) and each case must be evaluated on its own facts and circumstances. In re Estate of Hayes (1971), 131 Ill. App. 2d 563, 268 N.E.2d 501.

We believe that the trial court correctly found that petitioner overcame the presumption of donative intent by clear and convincing evidence and properly held that the proceeds of the account were assets of the estate. The circumstances surrounding the creation of the account indicate that Celia added the names of Arthur and Joel Furlett as co-signers on her account in order to help her pay her bills. The evidence shows that both Arthur Furlett and Bonnie Clyde recognized the payment of bills as Celia’s main concern. Clyde testified that Celia “was concerned that they be able to pay bills during her life and also if they had to do something after she died.” Clyde stated that this was also Arthur Furlett’s concern. Moreover, Celia’s note to Clyde, drafted by Arthur and signed by Celia after receipt of the signature cards, explicitly refers to the new signatories’ power to sign checks, but fails to refer to any ownership interest. We believe that this evidence demonstrates that Celia created this account for her own convenience, merely intending to insure that the joint tenants pay bills on her behalf.

Nor do we agree with respondents’ contention that the records show that Celia “understanding^ created” a joint account. Neither the signature cards nor the testimony of Bonnie Clyde requires us to so conclude. As the trial court noted in its findings, Clyde’s testimony was unclear as to any discussion with Celia. Clyde stated that when she spoke with customers who wanted to add signatories, she customarily advised them about the differences between joint tenancy and power of attorney accounts. However, Clyde could not specifically recall such a discussion with Celia, but merely assumed based upon her “normal” practice that she spoke with Celia personally about the options. By contrast, Clyde’s testimony that Celia created the account so that others could assist her in timely payment of her bills was clear and unequivocal.

Nor do the executed signature cards establish that Celia intended to create a joint tenancy with a right of survivorship. Clyde herself completed all information on the new signature cards, then sent them to Celia for her signature, enclosing a short, handwritten note which referred to “changing] the title on your checking account” and “addpng] the two new co-signers.” Celia’s note to Clyde stated simply, “I am confirming both my brother Arthur M. Furlett and his son Joel B. Furlett to sign check [sic] on my current checking account.” Notably, neither correspondence referred to a change in ownership interest or implied donative intent. Moreover, if Celia intended to make a gift to Arthur and Joel Furlett, a more logical vehicle would have been through her savings account or certificates of deposit at First Chicago. Although the signature cards present some evidence of donative intent, we believe that this documentary evidence, coupled with Clyde’s note and Celia’s note, is more consistent with an intention to create a power of attorney than with donative intent.

We also decline to infer, as respondents suggest, that the fact that Celia did not create a joint account at Peterson Bank indicates her understanding of the differences between the accounts. We believe that this evidence is equally consistent with the inference that Celia lacked donative intent regarding both accounts. Nor do we believe that the joint account’s small percentage of Celia’s total estate and Celia’s gifts to Joel and his wife prior to her death prove donative intent in light of the other evidence which establishes its absence.

In sum, we believe that the evidence effectively rebuts the presumption of donative intent. Testimony reveals that Celia wanted her family to use the funds to take care of her and pay her bills. We find sufficient evidence to support the court’s decision and see no basis to find that it was against the manifest weight of the evidence. Accordingly, we affirm the trial court’s order granting the petition to compel the release of the checking account.

For the foregoing reasons, the judgment of the circuit court of Cook County finding that the 1937 will was joint and mutual is affirmed. The trial court’s further finding that a joint account established by Celia Kaplan was an account of convenience rather than a true joint tenancy is also affirmed.

Judgments affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.