author: JUSTICE PERLIN

text:
      In re ESTATE OF VIOLA ROSTA, a/k/a Theresa Rosta, Deceased.—(Gerard E. Dempsey, Ex’r of the Estate of Viola Rosta, Petitioner-Appellee and Cross-Appellant, v. Ruth Holsen et al., Respondents—Frank R. Hladnik et al., Respondents-Appellants and Cross-Appellees.)
    First District (2nd Division)
    No. 81—3191
    Opinion filed December 28, 1982.

      Clarence J. Jadrich, Larry S. Kajfes, Ltd., and Theodore C. Weinberg, all of Chicago (Stanley Werdell, of French Lick, Indiana, of counsel), for appellants.
    Klein, Thorpe and Jenkins, Ltd., of Chicago (Gerard E. Dempsey, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

Viola Rosta, also known as Theresa Rosta, died testate on April 20, 1980, leaving an estate of $670,903.36. The estate consists of both probate and nonprobate assets. The nonprobate assets, a joint tenancy savings account and 18 Totten Trust accounts, amount to $368,594.18. The joint tenant in the savings account was Thomas J. Anderson; the beneficiaries of the Totten Trust accounts were Anderson, Frank R. Hladnik, Katherine M. Hladnik, Carol L. Hladnik, Ruth Holsen, decedent’s niece, and Ruth’s mother, Helen Holsen, decedent’s sister-in-law. The probate assets amount to $302,309.18. In her will, decedent provided legacies of $35,000 to Laszlone Rosta, another sister-in-law; $24,432.95 to Helen Holsen; and $2,000 to the pastor of a church. Testatrix directed that the residue be paid in equal shares to Helen Holsen and Ralph Holsen, a nephew. Gerard Dempsey was named as executor.

The principal issue in this appeal concerns the ultimate burden of the Federal estate taxes assessed against the estate. These taxes amount to $149,952.14. The executor petitioned the trial court for an order requiring equitable apportionment of the Federal estate tax liability between probate and nonprobate assets. The petition named all of the nonprobate beneficiaries as respondents and indicated their respective shares. The court ordered the executor to serve copies of the petition together with summons upon each of the nonprobate beneficiaries. Summons was issued to the Hladniks and Richard Anderson, the personal representative of the estate of Thomas J. Anderson, deceased. No summons was served on Ruth Holsen or Helen Holsen, two of the nonprobate beneficiaries, or on Ralph Holsen, a residuary legatee.

In their answers opposing the executor’s petition, respondents argued that in sections I and VI of her will, testatrix had manifested an intent to preclude equitable apportionment. Section I states: “I direct that all of my just debts, funeral expenses and any other proper charges against my estate be paid in due course during the administration of my estate.” Section VI provides: “If at the time of my decease I have any bank or other savings account, which is in joint tenancy with myself and another person, such account shall not be considered an asset of my estate, but shall pass to such other person as surviving joint tenant.” In seeking to establish the intent of the testatrix, respondents also relied on certain letters (designated as respondents’ exhibits B, C and D) which the scrivener of the will, Gerard Dempsey (the executor herein), sent to the testatrix in the course of preparing her will. Following receipt of the answers, the executor moved for summary judgment on the issue of equitable apportionment and moved to strike respondents’ exhibits B, C and D. The trial court denied these motions.

The trial court held that Illinois law requires equitable apportionment of the Federal estate tax burden between probate and nonprobate assets of an estate unless the decedent has directed otherwise. The court found that no such direction was expressed in the testatrix’ will. The court also found that the letters written by the scrivener to the testatrix did not impart to the will any direction or intent on the testatrix’ part that her nonprobate assets should not bear their proportionate share of the Federal estate tax liability. Accordingly, the court ordered the Hladniks and Richard Anderson, the personal representative of Thomas J. Anderson, deceased, to pay to the executor that portion of the Federal estate tax liability which was generated by the value of the assets each had received. Specifically, Frank R. Hladnik was ordered to pay $4,789.02; Katherine M. Hladnik and Carol L. Hladnik were each ordered to pay $3,575.89; and the estate of Thomas J. Anderson was ordered to pay $25,904.72.

Respondents have appealed the trial court’s order requiring equitable apportionment. The executor has cross-appealed the court’s denial of his motion for summary judgment and his motion to strike respondents’ exhibits. We will address respondents’ arguments first.

I

Respondents initially contend that the trial court’s order was void because the court lacked jurisdiction over three indispensable parties: Ruth Holsen, a nonprobate beneficiary; Helen Holsen, another non-probate beneficiary who is also a specific legatee and one of the two residuary legatees; and Ralph Holsen, the other residuary legatee. Petitioner (the executor) concedes that the court lacked jurisdiction over these persons but disputes whether they were indispensable parties.

In the view we take of this issue, it is unnecessary to determine whether these parties were indispensable. While an order entered without jurisdiction over an indispensable party is null and void (People ex rel. Meyer v. Kerner (1966), 35 Ill. 2d 33, 38, 219 N.E.2d 617), an exception to this ordinarily inflexible rule has been developed in the “doctrine of representation.” (Tri-Mor Bowl, Inc. v. Brunswick Corp. (1977), 51 Ill. App. 3d 743, 747, 366 N.E.2d 941.) Under this doctrine, the rule requiring joinder of indispensable parties is not applied when a party, though not before the court in person, is so represented by others that his interest receives actual and efficient protection. This so-called “doctrine of representation” applies where persons are before the court who have the same interests and will be equally certain to bring them forward and protect them, as those of persons not before the court. Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 158, 362 N.E.2d 382, and see also the authorities cited therein.

The executor in this cause petitioned the trial court for an order requiring equitable apportionment of the Federal estate tax burden between probate and nonprobate assets. The effect of such an order is to enhance the value of the residuary estate. It is apparent, therefore, that the executor has the same interests as Ralph Holsen and Helen Holsen, the residuary legatees, and has protected those interests by virtue of his petition for equitable apportionment. (See Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 158, 362 N.E.2d 382, where the court observed that the doctrine of representation has been most frequently applied in cases holding that the executor is an adequate representative of the beneficiaries under a will.) Respondents are nonprobate beneficiaries who have opposed the executor’s petition for equitable apportionment. Their interests are identical with those of Ruth Holsen, who is also a nonprobate beneficiary. In light of these facts, we conclude that the doctrine of representation is applicable in this case. For that reason, the failure of the trial court to obtain jurisdiction over the Holsens does not render the court’s order void.

II

Respondents next contend that nonprobate assets in a testate estate need not bear their proportionate share of the Federal estate tax burden when the probate assets are sufficient to pay all of the Federal estate taxes, all of the decedent’s debts and costs of administration, and all general and specific legacies, and there is a “substantial balance” left for distribution to the residuary legatees. Respondents characterize this as a case of first impression. The executor replies that respondents’ argument ignores the rationale of the equitable apportionment rule, i.e., that it is unfair to require probate assets to pay the Federal estate taxes generated by nonprobate transfers.

The equitable apportionment doctrine was first applied in Illinois in In re Estate of Van Duser (1974), 19 Ill. App. 3d 1022, 313 N.E.2d 228. In Van Duser, the decedent died intestate, leaving a gross probate estate of approximately $65,000. In addition, there was approximately $170,000 in joint tenancy property which was not part of the probate estate but was included in decedent’s estate for purposes of determining the Federal estate tax liability. The total Federal estate tax on decedent’s estate was $39,667 of which $30,623 (or 77.2% of the tax liability) was generated by the property passing in joint tenancy. One of the two heirs at law filed a motion to apportion payment of the Federal estate tax due by reason of decedent’s death so that the surviving joint tenants would be directed to pay their equitable shares. This motion was allowed and two of the surviving joint tenants appealed. The question on appeal was whether the Federal estate tax was to be paid proportionately by all persons who received property from the decedent both as heirs at law and as surviving joint tenants, or whether the tax was to be paid entirely from the probate assets.

The appellate court, noting that if the tax were paid only out of the probate estate most of the entire estate would be depleted, stated that, “logic, reason, and simple justice dictate that, unless there is a contrary intention expressed by the decedent, as in a will in testate estates, the doctrine of equitable contribution should be invoked as to non-probate assets to fairly distribute the Federal estate tax burden.” (In re Estate of Van Duser (1974), 19 Ill. App. 3d 1022, 1024.) The court concluded:

«*** sjnce the amount of the non-probate assets [property held in joint tenancy] was included in the gross estate in determining the amount of Federal tax liability and thus contributed to the assessment of that tax, impelling justice and fairness dictate, and equity provides, that the recipients of those assets contribute in paying the Federal estate tax proportionately to the amount of tax their share generated.” 19 Ill. App. 3d 1022, 1026.

Respondents attempt to distinguish Van Duser from the present case “because of the great disparity between the probate and nonprobate assets, ***.” We find this distinction unpersuasive. Nothing in the Van Duser opinion suggests that the applicability of the equitable apportionment rule depends on the relative values of the probate and nonprobate assets.

In Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662, our supreme court for the first time directly addressed the question whether an apportionment of the Federal estate tax may be allowed. In Roe, the decedent died intestate, leaving a probate estate of $13,848. The Federal gross estate also included $100,528 in joint tenancy property. The Federal estate tax on the combined properties was $5,340.95. The supreme court noted that although the estate tax was less than the probate estate, the total liability for the Federal estate tax, funeral expenses, debts and costs of administration amounted to $18,272.30, a sum considerably in excess of the probate estate. (69 Ill. 2d 525, 528.) The circuit court granted the administratrix’ petition for equitable apportionment of the Federal estate tax burden between the probate and joint tenancy property. The appellate court reversed and the supreme court granted the administratrix’ petition for leave to appeal.

In jRoe, the supreme court adopted the reasoning in Van Duser and affirmed the circuit court’s judgment allowing equitable apportionment. In reaching its decision, the court also relied on J. Pomeroy’s Equity Jurisprudence (5th ed. 1941):

“ '*** the most important doctrine, perhaps, which results from the principle, Equality is equity, is that of contribution among joint debtors, co-sureties, co-contractors, and all others upon whom the same pecuniary obligation arising from contract, express or implied, rests. This doctrine is evidently based upon the notion that the burden in all such cases should be equally borne by all the persons upon whom it is imposed, and its necessary effect is to equalize that burden whenever one of the parties has, in pursuance of his mere legal liability, paid or been compelled to pay the whole amount, or any amount greater than his proportionate share.’ ” 2 J. Pomeroy, Equity Jurisprudence sec. 411, at 157-58 (5th ed. 1941), cited in Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 532-33.

Contrary to respondents’ argument, we find no intimation in Roe that the supreme court intended to limit applicability of the equitable apportionment doctrine to estates in which “the nonprobate assets greatly exceed the Federal estate taxes, funeral expenses, debts, costs of administration, as well as the probate assets.” Rather, the court recognized that “[t]he nonprobate assets here generated the estate tax liability in large part, and to deny apportionment would inequitably favor the recipients of the nonprobate assets.” (69 Ill. 2d 525, 531-32; see also In re Estate of Lyons (1981), 98 Ill. App. 3d 995, 997, 425 N.E.2d 19.) We believe that respondents’ narrow interpretation of Roe is inconsistent with the principles of equity and fairness on which the opinion is based.

Respondents argue that Van Duser and Roe are distinguishable because both involved intestate estates. In the later case of In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266, however, the supreme court stated that the reasoning employed in Roe is equally applicable in testate estates. Accordingly, the court held that “[i]n the absence of directions from the decedent, an apportionment of Federal estate tax liability must be made, regardless of whether the decedent has written a will.” (82 Ill. 2d 15, 22.) The court directed that a proportionate share of the Federal estate tax liability of decedent’s testate estate had to be borne by the nonprobate interests of the two remaindermen, since those interests generated a large part of the estate tax liability. (82 Ill. 2d 15, 22.) The court also held that the surviving spouse did not have to contribute to the payment of taxes when her interest generated no tax liability. The court approved of language in Farley v. United States (U.S. Ct. Cl. 1978), 581 F.2d 821, 834, where the Court of Claims, interpreting Illinois law, noted that Roe “permits or requires the equitable apportionment of the burden of federal estate taxes in accordance with the relative values of the property generating the taxes and the property that does not, ***.” (Emphasis added.) (Farley v. United States (U.S. Ct. Cl. 1978), 581 F.2d 821, cited in In re Estate of Gowling (1980), 82 Ill. 2d 15, 23.) In light of the supreme court’s analysis in Gowling, it is apparent that the equitable apportionment rule is not restricted to estates where it is “absolutely necessary to invade the non-probate assets to satisfy the Federal estate tax,” as respondents suggest.

In In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1032, 422 N.E.2d 107, this court, after reviewing the supreme court’s decisions in Roe and Gowling, stated that “[equitable] apportionment is now the rule in Illinois, absent a clearly manifested contrary intent in the will.” Finding no such contrary intent in the will, we held that “the estate taxes levied on the instant estate are subject to apportionment among the beneficiaries of both the probate and nonprobate estates proportionate to the sums that generated those taxes.” (Emphasis added.) 96 Ill. App. 3d 1029, 1034.

Respondents purport to distinguish Fender on the grounds that in Fender “[t]here was a great disparity between the probate and non-probate assets,” and “the Federal estate taxes unconscionably exceeded the probate assets.” In our opinion, these distinctions serve only to illustrate that respondents have misapprehended the purpose of the equitable apportionment rule, which is to fairly distribute the Federal estate tax between probate and nonprobate assets. Respondents do not dispute that the nonprobate assets they have received generated $37,045.52 of the total Federal estate tax liability of $149,952.14. We concur with the executor that it would be manifestly unfair and contrary to the equitable apportionment rule as it has been articulated in Illinois to impose upon the residuary probate estate the burden of paying $37,045.52 in Federal estate taxes that was generated by these nonprobate assets.

Ill

Respondents contend in the alternative that sections I and VI of testatrix’ will, when construed in light of the letters written to the testatrix by the scrivener (the executor herein), clearly manifest an intent to preclude equitable apportionment. The executor responds that neither section evidences an intent to preclude apportionment and that the letters were inadmissible to establish such an intent.

In section I of her will, testatrix stated: “I direct that all of my just debts, funeral expenses and any other proper charges against my estate be paid in due course during the administration of my estate.” In In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1031, the testator directed that “all my debts, legitimate charges against my estate, *** and the expense of the administration of my estate, including any and all taxes and legitimate claims, be paid by my executrix, ***, out of the first monies available therefor.” The trial court determined that this language expressed the testator’s intent that the executrix pay all taxes, including estate taxes, out of the residue. On appeal, we disagreed with this interpretation and held that the common direction that an executor pay legitimate charges against the estate cannot be construed as an order that the residue assume primary liability for all payments. (In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1033-34.) In reaching this conclusion, we relied in part on the appellate and supreme court opinions in In re Estate of Gowling (1979), 77 Ill. App. 3d 548, 396 N.E.2d 82, aff'd (1980), 82 Ill. 2d 15, 411 N.E.2d 266.

In Gowling, the will empowered the executor to “settle claims in favor of or against my estate.” The trial court had reasoned that this provision implicitly indicated the testator’s intention that probate assets be used to settle the Federal estate taxes, since, under section 18 — 10 of the Illinois Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. HOVa, par. 18 — 10) amounts owed the Federal government represent a class of claims that may be assessed against the estate. The supreme court rejected this reasoning, relying on Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 372 N.E.2d 662, where the court held that the legislative classification of claims that may be presented against an estate and the designation of priorities for their payment is “completely unrelated to the question of whether the burden of the Federal estate tax should be apportioned.” (Roe v. Estate of Farrell (1978), 69 Ill. 2d 525, 531, cited in In re Estate of Gowling (1979), 82 Ill. 2d 15, 19.) The court concluded that “[i]n the absence of directions from the decedent, an apportionment of the Federal estate tax liability must be made.” In re Estate of Gowling (1979), 82 Ill. 2d 15, 22.

The appellate court’s decision in Gowling, which was affirmed by the supreme court, also considered whether the testator’s direction contravened equitable apportionment:

“The mere recital that the executor is to pay the claims of the estate seems to lack any indication of who should bear the burden of estate taxes. In other jurisdictions, the simple direction in a will that the executor is to pay all just debts or obligations is not viewed as a specific direction concerning the payment of death taxes nor does it necessarily constitute a direction against apportionment. See generally Annot., 70 A.L.R.3d 630, §6[a] (1976).” In re Estate of Gowling (1979), 77 Ill. App. 3d 548, 551-52, 396 N.E.2d 82, aff’d (1980), 82 Ill. 2d 15, 411 N.E.2d 266.

Nothing in In re Estate of Grant (1980), 83 Ill. 2d 379, 415 N.E.2d 416, cited by respondents, dictates a contrary result. In Grant, the supreme court held that the Federal estate tax must be computed prior to any marital deduction if the surviving spouse takes a statutory share by renouncing the will. The court based its decision on an analysis of section 2 — 8(a) of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. llO1^, par. 2 — 8(a)), which provides that if a will is renounced by the testator’s surviving spouse, the surviving spouse is entitled to one-third of the entire estate if the testator leaves a descendant, or one-half of the entire estate if the testator leaves no descendant, after payment of all just claims. Since the Federal estate tax constitutes a claim against the estate, the supreme court concluded that under section 2 — 8(a) of the Probate Act, the surviving spouse’s share upon renunciation cannot be relieved of the burden of the tax. (In re Estate of Grant (1980), 83 Ill. 2d 379, 387.) In Grant, the supreme court interpreted a statutory provision not involved in the present case. In our opinion, section I of the testatrix’ will does not manifest an intent to preclude apportionment.

Section VI of testatrix’ will provides: “If at the time of my decease I have any bank or other savings account, which is in joint tenancy with myself and another person, such account shall not be considered an asset of my estate, but shall pass to such other person as surviving joint tenant.” Respondents contend that in this section of her will, testatrix manifested a donative intent to give the joint tenancy assets unencumbered by liability for Federal estate taxes. A similar contention was rejected by the supreme court in In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266.

In Gowling, the testator and his spouse deeded two parcels of farm property to his daughter and his grandson, reserving life estates for themselves. Testator was predeceased by his first spouse. In his will, he recited that he had previously conveyed his farms to his daughter and grandson, reserving a life estate, and provided that the crops growing or harvested on the land deeded to the remaindermen but on which testator’s share had not been paid, should not be included in his estate and should belong to the remaindermen. In the supreme court, the remaindermen argued that the deeds by which they took their interests evidenced a donative intent on the part of the testator and his wife at that time that there should be no encumbrances such as Federal estate taxes on the remainder interests thereby taken. The supreme court, noting that in making this argument the remaindermen did not rely on any particular language in the deeds themselves, held that “the act of testator in executing the deeds does not alone support the argument made.” In re Estate of Gowling (1980), 82 Ill. 2d 15, 25.

Similarly, in the case at bar, the mere fact that testatrix established joint tenancies and directed that they not be considered assets of her estate, does not manifest an intent that the surviving joint tenants were to be exonerated from paying their proportionate share of the Federal estate tax burden. In re Estate of Gowling.

Respondents maintain, however, that sections I and VI of testatrix’ will must be interpreted in light of the letters which the scrivener (the executor herein) wrote to the testatrix in the course of preparing her will. These letters (respondents’ exhibits B, C and D), it is argued, clearly manifest the testatrix’ intent to preclude equitable apportionment. The executor responds that the letters were inadmissible and that, in any event, they do not reflect an intent on the part of the testatrix to preclude apportionment.

The cardinal rule of will construction, to which all other rules yield, is the ascertainment of a testator’s intention from the will itself. (In re Estate of Smith (1982), 107 Ill. App. 3d 1038, 1042, 438 N.E.2d 553.) That intention must be drawn from the will language where it has a settled legal meaning; in the absence of an ambiguity or uncertainty, evidence of the facts and circumstances surrounding the testator when he made the will may not be considered to impart a meaning other than that expressed in the will. (Mitchell v. Snyder (1949), 402 Ill. 279, 284, 286, 83 N.E.2d 680; In re Estate of Smith.) We find no ambiguity or uncertainty in testatrix’ will which would permit or require an inquiry into the circumstances surrounding its execution. We note further that proof of surrounding circumstances is never admissible for the purpose of importing into the will an intention which is not there expressed. (Peters v. Gebhardt (1955), 6 Ill. 2d 534, 548, 129 N.E.2d 731; Dahmer v. Wensler (1932), 350 Ill. 23, 30, 182 N.E. 799.) To negate apportionment, a “crystal clear” expression of testatrix’ contrary intent is required. (In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1034, 422 N.E.2d 107, citing Whitlow v. Thomas (Ohio App. 1949), 54 Ohio App. 41,_, 86 N.E.2d 622, 625.) That intent must be derived from the language of the will itself. (In re Estate of Fender (1981), 96 Ill. App. 3d 1029, 1032-33.) No language in this will evidences an intent to preelude apportionment (we have heretofore determined that neither section I nor section VI of testatrix’ will constitutes a direction against apportionment) and respondents’ exhibits were inadmissible to establish such an intent. (Appleton v. Rea (1945), 389 Ill. 222, 226-27, 58 N.E.2d 854; Mercantile Trust & Savings Bank v. Rogers (1955), 5 Ill. App. 2d 162, 172, 124 N.E.2d 683; Harris v. Harris (1921), 223 111. App. 406, 409.) This conclusion makes it unnecessary to decide whether the scrivener’s letters to the testatrix indicated any intention on the part of the testatrix that her nonprobate assets should not bear their proportionate share of the Federal estate tax liability.

IV

Respondents contend further that the testatrix did not intend to treat her beneficiaries equally and that the trial court’s order requiring equitable apportionment violated this intent. In support of this contention, respondents point out that testatrix disinherited eight of her 10 heirs in favor of persons who were related to her only by affinity and not by consanguinity, and that she did not divide her nonprobate assets equally among the recipients of those assets. Respondents also repeat their previous argument that sections I and VI of testatrix’ will, when interpreted in light of the scrivener’s letters, manifest an intent to preclude apportionment.

We believe that respondents’ contention is foreclosed by our previous discussion and merely add the observation that a will cannot be reformed to conform to any intention of the testator that is not expressed therein, no matter how clearly a different intention may be proved by extrinsic evidence. (Turek v. Mahoney (1950), 407 Ill. 476, 481-82, 95 N.E.2d 330.) While respondents have also invoked the doctrine of gift or devise by implication, we believe that doctrine is inapplicable here.

A gift or devise may be made without any express words of gift if an intention to give clearly appears from the will as a whole. (Connor v. Gardner (1907), 230 Ill. 258, 268, 82 N.E. 640.) However, devises by implication have been recognized in Illinois only in very limited circumstances. Such devises can only be given effect in cases of such clear necessity that from the will itself, no reasonable doubt of the intention can exist. Probabilities as to the testator’s intention cannot be weighed, but the implication must be so strong that an intention contrary to that imputed to the testator cannot be supposed to have existed in his mind. It must be such as to leave no hesitation in the mind of the court and permit no other reasonable inference. A gift by implication must be founded upon some expression in the will. It cannot be inferred from an absolute silence on the subject. Bradshaw v. Lewis (1973), 54 Ill. 2d 304, 308, 296 N.E.2d 747.

An examination of the will in this cause reveals that respondents’ reliance on the doctrine of devise by implication is misplaced. There is no provision in testatrix’ will evincing an intent, express or implied, that respondents should receive their nonprobate assets free from the payment of their proportionate share of the Federal estate taxes.

V

Finally, respondents contend that notwithstanding the adoption of equitable apportionment in Illinois, the “burden on the residue” rule remains viable and requires the residuary estate to pay all of the Federal estate taxes generated by both probate and nonprobate assets. In support of this contention, respondents rely upon In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 417 N.E.2d 266. We believe that respondents have misread Maddux.

In Maddux, the trial court denied a petition for apportionment of Federal estate taxes, executor’s fees and attorney fees among the devisees and legatees of the estate of the testatrix. The trial court ruled that the residuary estate should bear the burden of the estate taxes and fees without apportionment and two of the residuary legatees appealed. The appellate court affirmed, stating that “[wjhere a will is silent as to the payment of taxes or other debts, Illinois case law requires that payment first be made from the residuary estate. (In re Estate of Phillips (1971), 1 Ill. App. 3d 813, 275 N.E.2d 685; In re Estate of Fairchild (1974), 21 Ill. App. 3d 459, 315 N.E.2d 658.) Neither Gowling [In re Estate of Gowling (1980), 82 Ill. 2d 15, 411 N.E.2d 266] nor any other case cited by the appellants has purported to apply a different ride to testate estates.” In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 436-37.

We believe it is critical to note that neither Maddux nor either of the authorities which it cited involved an estate with nonprobate assets. In denying apportionment among probate assets, the court in Maddux recognized this distinction:

“Gowling implicitly approves the rule that the burden of Federal estate taxes falls on the residue. The Fourth District concluded in Gowling that '*** two distinct rules concerning the burden of estate tax liability may be concurrently applied with respect to a testate estate. As between the various probate assets distributed by a testator, Illinois follows the rule enunciated in Phillips and Fairchild,- i.e., the burden of Federal estate taxes falls on the residuary assets. [Citations.] However, to the extent nonprobate assets exist which generate estate tax liability contribution may be sought on a proportionate basis.’ (77 Ill. App. 3d 548, 553, 396 N.E.2d 82, 86.) The supreme court did not repudiate or modify the reasoning of the Fourth District on this point and specifically affirmed the appellate court’s direction that ‘[t]he proportionate share of tax attributable to the probate assets of the estate *** shall be borne to the extent possible by the residue ***.’ 77 Ill. App. 3d 548, 554, 396 N.E.2d 82, 86.” In re Estate of Maddux (1981), 93 Ill. App. 3d 435, 437.

We note further that in In re Estate of Phillips (1971), 1 Ill. App. 3d 813, 275 N.E.2d 685, which was cited in Maddux, the court, in denying apportionment among probate assets, specifically distinguished its holding from a situation in which nonprobate transfers have generated a portion of the Federal estate tax. In re Estate of Phillips (1971), 1 Ill. App. 3d 813, 816.

It is apparent from the foregoing that in the absence of a contrary direction from the decedent, where there are nonprobate assets in an estate which generate Federal estate taxes, the doctrine of equitable apportionment applies. We have heretofore determined that there was no such contrary direction expressed in testatrix’ will and that the extrinsic evidence offered by respondents to establish such an intent was inadmissible. Accordingly, we find no error in the trial court’s order requiring apportionment of the Federal estate taxes between probate and nonprobate assets.

VI

In his cross-appeal, the executor contends that the trial court erred in denying his motion for summary judgment on the issue of equitable apportionment and his motion to strike respondents’ exhibits. In light of our resolution of the issues presented by respondents’ appeal, it is unnecessary to reach the merits of the executor’s cross-appeal.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.

      Helen Holsen is also a nonprobate beneficiary. Because of the relatively small amount of nonprobate assets she has received, however, Helen would benefit from equitable apportionment.

      It is immaterial, therefore, whether Ruth Holsen and Helen Holsen, as nonprobate beneficiaries, have consented to an apportionment of the Federal estate tax, as the executor has represented to this court.

      An excellent analysis of the development of this doctrine in Illinois may be found in Note, In re Estate of Gowling and In re Estate of Grant: The Limits of Equitable Apportionment, 13 Loy. Chi. L. J. 309 (1982).


source: Caselaw Access Project

author: JUSTICE HARTMAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PALMER, Defendant-Appellant.
    First District (2nd Division)
    No. 81—743
    Opinion filed December 28, 1982.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Rhoda W. Davis, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, James Palmer, was charged by indictment with two counts of armed robbery and two counts of armed violence. Pursuant to the State’s motion, the trial court nolle prossed the armed violence counts. Following a jury trial, defendant was convicted of both armed robbery counts and sentenced to concurrent terms of six years.

The principal issues raised on appeal include whether: the State improperly withheld exculpatory evidence; defendant was denied a fair trial by the circuit court’s response to various jury requests; and, the State carved two offenses from the same act in violation of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

On February 17, 1980, at approximately 3 a.m., Laura Martin and Brenda Wilson were working together at a 7-Eleven store in Chicago. Martin testified that defendant brought some Mountain Dew and a bag of Ruffles potato chips to the front counter and asked for beer nuts. Defendant did not have enough money and said that he would go back to the car for additional cash. Wilson put the items in a paper bag. Defendant returned to the counter. He pulled out what appeared to be a revolver and said, “*** give me the money you have in the register.” Martin was standing behind Wilson at the register. Martin opened the register and defendant took approximately 20 single dollar bills and about $5 worth of change. Defendant left the store and went around the side of the building. A number of police officers jumped out of their cars and ran toward the alley. Several seconds or minutes elapsed from the time defendant left the store until the police arrived. A couple of hours after the incident, in a hospital emergency room, Martin identified defendant.

Police Officer Roger Gregory stated that he and his partner arrived at the grocery store shortly after 3:15 a.m. on the day of the incident. He observed a man run from the store to a car. They chased the car on foot, because the cement guardrail in the alley prevented access with their squad car. They ran about a half block, getting within five feet of the vehicle at one point. It was a yellow Buick with a black top, license No. KR 789, stipulated to have been registered to Irene Tanksley. When recalled as a defense witness, Gregory testified that the car was a 1974 Buick. Other evidence' reveals that on the day in question defendant was living with Tanksley.

Police Officer Charles Gardner testified that he observed numerous police vehicles chase a black and yellow Buick, license No. KR 789. He moved his car to cut off the Buick. Another police car collided with the Buick. A male Negro fled the Buick. As he ran around the comer, Gardner lost sight of him briefly and heard two apparent gunshots and saw flashes coming from the direction of the men. When Gardner turned the corner, he saw defendant stooping down. The officers told defendant he was under arrest. When defendant struggled, they wrestled him to the ground and handcuffed him. Defendant was injured during the struggle and was taken to the hospital.

Gardner testified that his partner found approximately 21 one-dollar bills and a quantity of change in defendant’s pants pockets. Inside the Buick, Gardner observed a bottle of Mountain Dew and a bag of potato chips. 7-Eleven tags were on both items. No weapon or shell casings were found in the area. The potato chips and Mountain Dew were destroyed approximately four months after the incident, apparently because the wrong box had been checked on the inventory sheet. The money found on defendant was deposited in a bank and commingled with the other currency of the city.

Defendant, 28 years old, testified on his own behalf. He did not commit the crime. On the morning in question he was driving home in a 1969 Buick, which had a black top and white bottom. He saw a police car with flashing lights, he heard a shot behind him and panicked. He drove east where he met another police car which was shooting at him. His car crashed into a fire hydrant, he got out and put up his hands. The police pulled their guns, handcuffed him, and found that he had two $5 bills. The police walked him between a gangway. They wanted him to confess to the robbery. He denied it. They beat him until he lost consciousness. He was taken first to a police station and then to a hospital for treatment to his injured face and ribs.

I

Defendant maintains that his right to a fair trial was denied by the failure to the State to disclose that a crucial eyewitness, Brenda Wilson, was unable to identify him as the offender at a showup. Defendant filed a motion for discovery and inspection requesting, inter alia, the “names of any individuals who confronted the accused and made no identification ***.” In responding to defendant’s request, the State did not disclose Wilson’s name. Shortly before trial, an investigator testified that he had personally served Wilson with a subpoena commanding her to appear in court. Immediately following this testimony and pursuant to the State’s motion, the circuit court issued an arrest warrant for Wilson for contempt of court.

Although she did not testify at trial, during a hearing on defendant’s post-trial motions, Wilson stated that two hours after the incident the police took her to a hospital. She was shown a man lying in bed. She told them that she did not know if that was him because his face was “messed up” and disfigured. She did not tell the police or the State’s Attorney that the person they had was the person who committed the offense. The person who robbed the the store was not present in the courtroom.

At this same hearing, the assistant State’s Attorney testified that he met with Wilson and Martin on a day when the case was set for trial. Wilson specifically told him that she would not have any trouble identifying defendant. She told him that “when she identified the defendant at the hospital” Martin was not present. On a later date he telephoned Wilson and informed her of a new court date. She told him she could appear.

The issue raised is whether the State’s failure to disclose that Wilson did not identify defendant at a showup denied him his due process and statutory rights. The suppression by the prosecution of material evidence favorable to an accused violates due process. (Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194; People v. Hoffman (1965), 32 Ill. 2d 96, 99-100, 203 N.E.2d 873.) When the State receives a specific and relevant request from defendant, the failure to make any response is seldom, if ever, excusable. (United States v. Agurs (1976), 427 U.S. 97, 106, 49 L. Ed. 2d 342, 351, 96 S. Ct. 2392, 2399.) Supreme Court Rule 412(c) requires:

“*** [T]he State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” (Emphasis added.) (73 Ill. 2d R. 412(c).)

The omitted evidence must be evaluated in the context of the entire record. People v. Burns (1979), 75 Ill. 2d 282, 288, 388 N.E.2d 394.

Defendant’s contention must be rejected, since manifestly, the State cannot disclose any exculpatory evidence, however specific, relevant and material it may be, which it does not possess. (See 73 Ill. 2d R. 412 (c), (f).) As a practical matter, the failure to disclose nonexistence exculpatory evidence which surfaces after defendant’s trial cannot violate Brady and its progeny. In this situation nothing has been suppressed. Defendant cites no authority to the contrary. The cases relied upon by defendant, e.g., People v. Burns (1979), 75 Ill. 2d 282, 388 N.E.2d 394, People v. Murdock (1968), 39 Ill. 2d 553, 237 N.E.2d 442, People v. Bass (1980), 84 Ill. App. 3d 624, 405 N.E.2d 1182, and People v. McCabe (1979), 75 Ill. App. 3d 162, 393 N.E.2d 1199, are inapposite, since in those cases the State or one of its departments was in timely possession of the requested evidence. In considering defendant’s motion for a new trial, the circuit court was not compelled to believe the post-trial testimony of Wilson. The court could have reasonably concluded, from the assistant State’s Attorney’s testimony and the State’s considerable efforts to call Wilson as one of its witnesses, that the exculpatory evidence in question was not in the possession of the State or any of its police officers until after the trial’s termination.. People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331.

II

Defendant next maintains that the “indictment procedure” denied him due process of law; the grand jury testimony of Officer Gardner, allegedly indicated that he had a past record and that the car in question was registered to defendant, which was false and thereby deprived him of due process of law. Defendant, however, has failed to include a transcript of the grand jury proceedings in the record on appeal. The responsibility for the proper preservation of the proceedings below rests upon the appellant in an appeal. (People v. Smith (1969), 42 Ill. 2d 479,-483, 248 N.E.2d 68.) A question not presented by a record will not be considered on review. People v. Wilson (1981), 92 Ill. App. 3d 370, 386, 415 N.E.2d 1315.

Assuming, arguendo, that the matter had been properly presented, defendant’s argument is unfounded nevertheless. A circuit court has authority to dismiss an indictment in a criminal case where there has been a “unequivocally clear denial of due process” even though that is not a stated ground in section 114 — 1 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 114—1; People v. Lawson (1977), 67 Ill. 2d 449, 455-56, 367 N.E.2d 1244.) The subject vehicle may not have been registered to defendant as suggested by Gardner’s purported testimony, yet defendant had ready access to it. Indeed, the car was registered to the woman with whom defendant lived at the time of the crime and defendant admitted driving this car on the day in question. In view of these latter facts, defendant’s contention, that the challenged statement was “false testimony on a point essential” to his defense, must be rejected. The significance of the other misstatement, concerning defendant’s prior record, was diminished, if not eliminated, by the assistant State’s Attorney’s admonishment to the grand jury that any past record not be considered by it.

Defendant’s reliance on People v. Rivera (1979), 72 Ill. App. 3d 1027, 390 N.E.2d 1259, is misplaced. In Rivera the court stated in dicta that an indictment could be properly dismissed “upon perjured testimony if the denial of due process was established ‘with certainty.’ ” (72 Ill. App. 3d 1027, 1038.) Defendant here merely has shown the presence of two misstatements which manifestly do not rise to the level of perjury or a clear denial of due process. (People v. Rodgers (1981), 98 Ill. App. 3d 999, 1001, 424 N.E.2d 1312.) We find no error.

Ill

A. During its deliberations, the jury submitted several written questions to the circuit court, including the following:

“L. Martin — did she state a bottle or a can of Mountain Dew?”

The circuit court found that this question called for the testimony of Martin and related to her credibility. It summoned the appropriate court reporter, who was not present in the building. The court purportedly did not inform the jury of this fact. Approximately three hours later, before the court reporter arrived, the court was informed that the jury reached a verdict. The court disallowed defendant’s motion to have Martin's testimony read to the jury before they returned their verdict.

Defendant contends that the court erred when it purportedly failed to notify the jury of the fact that it had summoned the court reporter. This argument is contrary to the record. First, defendant’s citation to the record does not demonstrate that the court so failed to notify the jury. Indeed, during argument on defendant’s motion for a new trial, the following colloquy took place:

“[The court]: *** [I]t is my recollection that *** it was the court’s instruction to the deputy to inform the jury that the court reporter had been sent for. Albeit this communication took place perhaps two hours before the verdict was reached.
“[Mr. Decider (defense counsel)]: Correct.”

Second, assuming for the sake of discussion that the jury was not notified of the decision to summon the court reporter, there was no error. Defendant fails to cite any case in support of his proposition that a jury must be properly notified of the summoning of the court reporter.

It is within the sound discretion of the circuit court to allow or refuse a jury’s request for the review of the testimony. (People v. Pierce (1974), 56 Ill. 2d 361, 363-64, 308 N.E.2d 577.) The question of notification, “like so many others which appear in the course of trial, is best entrusted to the trial court’s sound discretion.” (People v. Pierce (1974), 56 Ill. 2d 361, 364.) Assuming that the circuit court determined not to notify the jury that a review of the transcript was forthcoming, that decision was not an abuse of discretion. (See People v. Pierce (1974), 56 Ill. 2d 361, 363-64.) Its ultimate conclusion, in effect, that a review of Martin’s testimony was not necessary for the jury’s verdict was, under the circumstances, entirely proper. People v. Bibbs (1981), 101 Ill. App. 3d 892, 898, 428 N.E.2d 965.

B. During its deliberations, the jury made the following written inquiry:

“Do the charges of Armed Robbery apply to both parties or are they separate and distinct charges? If they are separate and distinct charges is it appropriate to render opposite decisions?” (Emphasis added.)

The circuit court found that the answers to these questions were in the jury instructions and declined to comment thereon.

On appeal, defendant maintains that the “obvious” basis for the jury’s confusion was in the following instruction (Illinois Pattern Jury Instructions, Criminal, No. 14.02 (2d ed. 1981) (hereinafter IPI Criminal):

“To sustain the charge of armed robbery, the State must prove the following propositions:
First: That the defendant took United States Currency from the person or presence of Laura Martin and/or Brenda Wilson; and
Second: That the defendant did so by the use of force or by threatening the imminent use of force; and
Third: That the defendant was armed with a dangerous weapon.
* * * "

Defendant contends that based on this instruction, it appeared that the jury was required to find defendant guilty of both charges if it found the element contained in the instruction applied to either Martin or Wilson. Defendant observes that the jury was given separate verdict forms: one for the armed robbery of Wilson and one for the robbery of Martin. He concludes that the conflict between this instruction and the separate verdict forms required further clarification by the circuit court.

At trial, defense counsel did not object to the court’s ruling on the subject inquiries, and therefore, the issue cannot be asserted on appeal. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.

Even were we to assume that this issue has not been waived, defendant’s contention cannot be sustained. A circuit court may properly exercise its discretion and decline to answer the jury’s inquiries where the given jury instructions are readily understandable and sufficiently explain the relevant law. (People v. Ross (1981), 100 Ill. App. 3d 1093, 1096-97, 427 N.E.2d 868; People v. Blair (1981), 102 Ill. App. 3d 1018, 1028, 429 N.E.2d 1375.) Here, the jury instructions given were adequately clear to apprise the jury of the applicable law.

The cases relied upon by defendant, People v. Land (1975), 34 Ill. App. 3d 548, 340 N.E.2d 44, and People v. Morris (1980), 81 Ill. App. 3d 288, 401 N.E.2d 284, are not in point. In Land, the circuit court refused to permit the jury even to disclose the substantive contents of its question. In Morris the given jury instructions were incomplete. (Cf. People v. Gathings (1981), 99 Ill. App. 3d 1135, 1138, 425 N.E.2d 1313.) Neither circumstance is present here. Accordingly, the circuit court did not abuse its discretion by declining to respond to the jury’s queries where the given instructions sufficiently explained the pertinent law. People v. Ross (1981), 100 Ill. App. 3d 1093, 1096-97; People v. Tostado (1981), 92 Ill. App. 3d 837, 839, 416 N.E.2d 353.

IV

In its written order, the circuit court unequivocally imposed two concurrent six year sentences, one for each armed robbery conviction. Defendant maintains that this judgment violated the rule in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, against carving two offenses from the same act. We agree.

A person commits a robbery when “he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1979, ch. 38, par. 18—1(a).) The presence requirements of this statute relates to the property taken; it must have been in the presence or control of the victim. (People v. Smith (1980), 78 Ill. 2d 298, 303, 399 N.E.2d 1289.) In the present case, defendant committed only one act of armed robbery: he took money and groceries from the presence of both Wilson and Martin by threatening the imminent use of force. Therefore, it was improper for the State to create more than one offense from this single physical act. People v. King (1977), 66 Ill. 2d 551, 566; see People v. Velleff (1981), 94 Ill. App. 3d 820, 826, 419 N.E.2d 89.

The State argues that defendant committed more than one act, but does not clearly identify the nature of those acts. The State’s reliance on People v. Moore (1978), 61 Ill. App. 3d 694, 378 N.E.2d 516, is of no aid. In Moore, the court held that since the taking of the cash occurred at a different time than the taking of the other property, defendant could be properly convicted on two counts of armed robbery. In contrast here, property was taken in a single act from the presence of two persons. The fact that this case involves more than one employee is immaterial. Cf. People v. Gaines (1981), 88 Ill. 2d 342, 367-68, 430 N.E.2d 1046.

For the aforementioned reasons, we affirm defendant’s conviction and sentence based on the armed robbery of Martin. We vacate the conviction and sentence based on the armed robbery of Wilson.

Affirmed in part; vacated in part.

STAMOS, P.J., and PERLIN, J., concur.

      At a post-trial hearing, Wilson stated that the police arrived “seconds” after the offender left the store.

      The police report also stated that each victim at the hospital independently identified the suspect as the offender.

      In addition to the challenged instruction, the jurors were also given People's Instruction No. 5, IPI Criminal No. 2.01, and People’s Instruction No. 10, IPI Criminal No. 14.01.


author: JUSTICE RIZZI

text:
    ALICIA KUYKENDALL, Plaintiff-Appellee, v. THE BOARD OF EDUCATION OF EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT NO. 202, Defendant-Appellant.
    First District (3rd Division)
    No. 81—854
    Opinion filed December 30, 1982.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.

      Solomon I. Hirsh, of Hirsh & Schwartzman, P.C., of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, Alicia Kuykendall, sought a declaratory judgment that she had entered upon contractual continued service within the meaning of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 24—11), and a writ of mandamus directing defendant, the Board of Education of Evanston Township High School District No. 202, to reinstate her to a teaching position. The trial court granted plaintiff’s motion for summary judgment, denied defendant’s cross-motion for summary judgment and ordered the relief plaintiff requested. We reverse and enter summary judgment in favor of defendant.

The material facts are undisputed. On August 22, 1977, defendant appointed plaintiff to teach business education for nine weeks to replace a teacher on leave. On November 14, 1977, defendant appointed plaintiff to a part-time position as a business education teacher, which she held from November 15, 1977, until April 6, 1978. On November 28, 1977, defendant ratified plaintiff’s appointment to a full-time position beginning November 7, 1977, and ending July 21, 1978, as a business education teacher in Project Employment No. 202, an adult education training program wholly Federally funded under title I of the Comprehensive Employment and Training Act of 1973 (CETA) (29 U.S.C. sec. 801 et seq. (1976)). For the 1978-79 school term, plaintiff taught vocational experience in defendant’s high school program. Defendant re-employed plaintiff in that position, with a salary increase, for the 1979-80 school term. On March 17, 1980, defendant notified plaintiff, in accordance with the statutory requirements for teachers who have not entered into contractual continued service, that she would be dismissed at the end of the 1979-80 school term.

The teacher tenure statute which is applicable to school districts having less than 500,000 inhabitants (Ill. Rev. Stat. 1977, ch. 122, par. 24—11) provides:

“Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end of such period.”

The statute defines “teacher” as “any or all school district employees regularly required to be certified under laws relating to the certification of teachers ***.” (Ill. Rev. Stat. 1977, ch. 122, par. 24—11.) The statute does not define “full-time.” Nor does it specifically provide for teachers whose positions are wholly Federally funded.

In this case, the parties disagree on whether the 1977-78 school term was plaintiff’s first probationary year. We believe that there is no question that defendant employed plaintiff during the 1977-78 school term. The issue is whether defendant employed plaintiff as a full-time teacher within the meaning of the teacher tenure statute for the purpose of determining contractual continued service.

Plaintiff maintains that her initial nine-week appointment in the high school to replace a teacher on leave was properly included as part of her first probationary year. We disagree. Although the position was full-time in terms of hours per day and teaching load, it was merely temporary. Temporary employees cannot be permitted to nullify the purposes of tenure laws by gradually acquiring tenure rights. (People ex rel. Thomas v. Board of Education (1963), 40 Ill. App. 2d 308, 313, 188 N.E.2d 237, 240.) We therefore conclude that plaintiff’s nine-week appointment cannot be counted toward her probationary period. Our conclusion does not permit, as plaintiff suggests, the denial of tenure by the appointment of teachers for a few weeks at a time, term after term. The courts cannot allow school boards, whether in good or bad faith, to rearrange teaching assignments in ways which circumvent the purpose and spirit of the tenure laws. Hagopian v. Board of Education (1978), 56 Ill. App. 3d 940, 944, 372 N.E.2d 990, 994.

Although plaintiff does not argue that her other 1977-78 position in defendant’s high school program, a part-time business education appointment, was full-time, she maintains that this appointment confirms her status as a regular member of the high school faculty. We disagree. Since a nontenured teacher cannot rely upon part-time teaching to establish tenure (Johnson v. Board of Education (1981), 85 Ill. 2d 338, 347, 423 N.E.2d 903, 908), plaintiff’s part-time position was insufficient to count toward her probationary period.

Central to plaintiff’s argument that 1977-78 was her first probationary year is her contention that her teaching in a Federally funded program was properly included as part of her first probationary year. During the 1977-78 school term, plaintiff’s longest teaching assignment was her position as a business education teacher in the adult education program funded under CETA. As a CETA teacher, plaintiff’s salary and benefits were paid by defendant, which was reimbursed by the Federal government via the Cook County Office of Manpower Services. Also, plaintiff’s students were not high school students, but specially selected unemployed, underemployed or economically disadvantaged trainees who were paid to attend classes. Under these circumstances, we believe that plaintiff’s CETA teaching cannot be included as part of her first probationary year.

One purpose of the tenure system is to provide teachers of ability and experience some degree of job security. (Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344, 423 N.E.2d 903, 906.) The teacher tenure statute provides that tenured service continues in effect the terms and provisions of a teacher’s contract for the last school term of the probationary period. Therefore, the legislature must have intended that tenure result from service in positions over which local school boards have control. (See Hayes v. Orleans Parish School Board (1970), 256 La. 677, 237 So. 2d 681.) It would be unrealistic and impractical to require local school boards to give teachers job security on the basis of positions over which the boards themselves have no control. Since the local boards have no control over the continuation of positions which are wholly Federally funded, we believe that teachers in programs that are wholly Federally funded are not full-time teachers within the meaning of the teacher tenure statute. We therefore conclude that when a school district employee teaches in a wholly Federally funded program, that employment cannot be considered part of a probationary year.

Our conclusion is supported by the well-established principle that the teacher tenure statute must be strictly construed in order not to interfere unduly with the responsibility of local boards to operate the educational systems efficiently. (See Johnson v. Board of Education (1981), 85 Ill. 2d 338, 344, 423 N.E.2d 903, 906; Illinois Education Association Local Community High School District 218 v. Board of Education (1975), 62 Ill. 2d 127, 130, 340 N.E.2d 7, 9.) Our courts have applied this principle in determining that neither part-time teaching (Johnson) nor substitute teaching (Booker v. Hutsonville School District No. 1 (1982), 107 Ill. App. 3d 357, 437 N.E.2d 937) is probationary service which can be relied upon by a nontenured teacher to establish tenure.

We find further support for our conclusion in the nature of the probationary period itself. The probationary period is a testing period that begins with the date of the appointment which will ripen into a permanent position. (Strejcek v. Board of Education (1979), 78 Ill. App. 3d 400, 403, 397 N.E.2d 448, 451.) The probationary period gives an employee the opportunity to prove himself, and it also permits an employer to evaluate the employee’s performance before being committed to contractual continued service. (Seim v. Board of Education (1974), 21 Ill. App. 3d 386, 392, 315 N.E.2d 282, 287.) However, the probationary period may be inadequate to accomplish these objectives if a teacher does not teach in a regular high school program, but rather, trains paid participants in a wholly Federally funded program such as CETA. We have recognized that a school board must have maximum flexibility in dealing with probationary teachers. (See Rockford Education Association v. Board of Education (1973), 11 Ill. App. 3d 78, 80, 296 N.E.2d 100, 102.) We believe that this essential flexibility would be inhibited if wholly Federally funded positions were included as part of a probationary period and simply ripened into permanent positions. Therefore, plaintiff’s position as a CETA teacher could not be considered part of her first probationary year.

Since none of the three positions which plaintiff held during the 1977-78 school term could be counted as part of a probationary period within the meaning of the teacher tenure statute, we conclude that the 1977-78 term was not plaintiff’s first probationary year. Accordingly, the summary judgment for plaintiff is reversed, and defendant’s cross-motion for summary judgment is granted.

Reversed. Summary judgment is entered in favor of defendant.

McNAMARA and McGILLICUDDY, JJ., concur.

      We decline to find that plaintiff was merely a Federal employee assigned to the school district under the provisions of the CETA program. Contra, McLain v. Board of Education (1978), 66 Ill. App. 3d 1024, 1026, 384 N.E.2d 540, 541-42.

      Our decision does not affect the tenure status of school district employees who entered upon contractual continued service prior to teaching in a wholly Federally funded program. Cf. Johnson v. Board of Education (1981), 85 Ill. 2d 338, 347, 423 N.E.2d 903, 908, where the court noted that part-time teaching agreed to by an experienced teacher who has tenure at the time of the agreement may not cause that teacher to lose tenure, but part-time teaching cannot be relied upon by a non-tenured teacher to establish tenure.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRYL MIMS a/k/a Darryl Williams, Defendant-Appellant.
    First District (2nd Division)
    No. 81—918
    Opinion filed December 28, 1982.
    Rehearing denied January 31, 1983.
    Steven Clark and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Dean P. Karlos, and Harry John Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Darryl Mims, appeals his conviction by the circuit court, sitting without a jury, of murder and two counts of armed robbery stemming from the murder of Sherman Hall, a customer in a tavern, shortly after midnight on September 15, 1980. He presents as issues whether: (1) the circuit court erroneously denied his motion for a continuance moments before the trial was to begin; (2) the State’s failure to inform him that one of the arresting officers would repudiate a portion of his police report at trial was prejudicial to his case; (3) assistant State’s Attorneys assigned to the felony review division must make written summaries of the initial statements given them by occurrence witnesses; and (4) the extended-term sentences he received for armed robbery were improper.

Mims and Joseph Mahogany were charged with murder, attempted murder, attempted aggravated kidnaping, armed robbery, aggravated battery and armed violence in connection with their alleged involvement in a robbery and murder which occurred in the tavern located near the intersection of Marquette, May and 67th Street in Chicago.

The State’s witnesses testified that Mims and Mahogany entered the tavern shortly before midnight and sat a distance away from the small group of “regular” customers. The two ordered some beer. Mims made a telephone call and then the two ordered another two beers. Later, when Kattie Simmons, the barmaid, had her back to the bar and was ringing up the cash register she heard Mims and Mahogany both call out in a loud voice: “This is a stick-up. Put your hands on the bar.” As she turned around, she heard a gunshot and saw Hall, the victim, fall to the ground. She dropped to the floor behind the bar. Mahogany walked around the bar, grabbed her, and demanded to know where the owner’s gun was. She heard Mims demanding to know what the other customers had in their pockets. John Patterson, a customer, testified that one defendant held a gun to the back of his neck while he was lying on the floor and took money out of his pockets. Lewis Williams, another customer, testified that the man later identified as Mims took his (Williams’) wallet out of his pocket. One of the defendants asked Simmons how to open the cash register. She told him and heard the register ring open.

As Mims and Mahogany were preparing to leave, one of them realized that the police had arrived and called out to his partner to grab Simmons and use her as a hostage, which he did. Simmons did not open her eyes until she was outside. When she did, she saw a squad car in front of the tavern and then heard bullets whizzing past her. Three bullets struck her.

Police Officer Virgil Jones testified that Mims came out of the tavern, crouched, and shot at him. Jones fired back, and he saw a gun fall “from him.” The parties later stipulated that, according to a firearms expert, this gun had never been fired. On cross-examination, Jones testified that he had transposed defendants’ names in his report. Police Officer Gregory Stevenson, Jones’ partner, testified that he saw the tavern door open, two male Negroes in the doorway, one crouching, and saw the door close. The door reopened and he saw a lady being forced outside with a gun being held to her head, heard two shots and saw a muzzle flash coming from the man, later identified as Mahogany, who had been holding the gun to the woman’s head.

Sergeant James Ivory testified that he arrived at the scene after the two other officers. He entered the tavern wielding a shotgun, and called for anyone in the rear storeroom to come out. The two defendants emerged, Mims supporting Mahogany. Mahogany reached leftwise across his body toward his waistband and Ivory fired the shotgun. Both defendants fell.

Mims testified in his own behalf. As he was waiting for a bus at 69th and Racine between 11:30 and 12 o’clock on the evening in question, he saw Mahogany, started talking and walking with him to 64th and Racine. As they were walking past the subject tavern, Mahogany suggested that they stop in and have a drink. Mahogany ordered a beer; Mims nothing. Mahogany walked to the back of the tavern and started shooting craps on the pool table with others, while Mims telephoned his mother. When finished talking, Mims saw Hall walk into the tavern, approach Mahogany, and argue with him. Hall broke off the argument, threw his hands up in the air “like he didn’t want to be bothered” and started walking away from Mahogany toward the bar. Mahogany walked up behind, told Hall to “freeze,” and shot him in the back.

Moments later, a woman at the bar called out that the police were outside. Williams then tried to calm down Mahogany, who was about to panic, and told Simmons to go over to the door and call in the police. As she started to the door, Mahogany ran up behind her, grabbed her, and pushed her out. Mims heard the sound of guns firing outside and saw Mahogany come back inside and run to the back. He heard the police announce that they had the place surrounded. Mims pleaded with Mahogany to give up. The police burst into the tavern a few minutes later. When they came in, Mims had his arm around Mahogany, who was bleeding. As the police approached them, Mahogany suddenly bent down and turned to his right at which point the police shot them both.

The court found Mims guilty of murdering Hall and guilty of two counts of armed robbery.

I

Mims contends that the circuit court did not permit him to fully articulate why he wanted to retain private counsel to represent him and argues, without citing authority, that he has a right to make such a motion as late as the time when his trial was about to commence. He notes that several State and Federal courts have recognized that criminal defendants have the right to explain to the court why they desire new counsel to represent them, citing Monroe v. United States (D.C. App. 1978), 389 A.2d 811, and Brown v. Craven (9th Cir. 1970), 424 F.2d 1166. Mims’ argument is not persuasive for several reasons: The circuit court appointed Nicholas Iavarone, an experienced criminal lawyer, to represent Mims in light of the severity of the charges that had been brought against him. When Iavarone informed the court that Mims “[did] not want to go to trial,” just moments after having announced that he and his client were ready to proceed, the court responded:

“THE COURT: He is asking for a continuance, in other words?
MR. IVARONE: Yes, Judge.
THE COURT: What are the grounds for the continuance? What are your grounds for continuance, Mr. Ivarone?
MR. IVARONE: He feels that he would be able to do much better with an attorney, if his family can raise the money to hire a private attorney. Therefore, he would like an opportunity to hire private counsel.
THE COURT: Motion for continuance as to Mr. Williams [Mims] is denied.
* * *
DEFENDANT WILLIAMS [MIMS]: I couldn’t even get a private attorney?
THE COURT: You have a private attorney.
MR. WILLIAMS [MIMS]: I don’t have anything against Ivarone or anything, but I seriously feel I could have been better than—
THE COURT: Mr. Williams [Mims], I wouldn’t make any comment on that. You have an attorney who is skilled in the practice of criminal law. I see no reason at this juncture after you have properly, I think, demanded trial that on the moment of the trial, not the eve of trial, to grant your continuance and it is denied.
* * *
MR. WILLIAMS [MIMS]: Reason, like I say I feel I can do better than this with his case.
* * *
[THE COURT]: Mr. Ivarone is your lawyer and will remain your lawyer. Is that clear to you?”

The first reaction of the court, therefore, was not to peremptorily deny Mims’ request, but to ascertain why Mims wanted a continuance. Iavarone explained why. Mims did not disagree with Iavarone’s explanation, in fact, he later restated it in his own words when he said: “I don’t have anything against Ivarone or anything ***.” The circuit court did not find Mims’ explanation adequate.

The decision to grant or deny a motion for a continuance lies in the sound discretion of the court (Ill. Rev. Stat. 1979, ch. 38, par. 114—4(e); People v. Friedman (1980), 79 Ill. 2d 341, 347, 403 N.E.2d 229). The motion may be granted if the “interests of justice” so demand (Ill. Rev. Stat. 1979, ch. 38, par. 114—4(d), (f)), bearing in mind the right of the defendant and the State to a speedy, fair and impartial trial (Ill. Rev. Stat. 1979, ch. 38, par. 114—4(h)). In Friedman, after trial had been set 21/2 months earlier to allow defendant to retain private counsel if he chose, on the trial date defendant asked to be represented by private counsel, a lawyer who would not have been able to begin preparing for trial until late the following week. Friedman stated that he was displeased with his appointed attorney’s performance and had no faith in his ability to represent him. The circuit court denied his motion for a continuance and the supreme court affirmed on this point, although the case was reversed and remanded on other grounds. Mims’ situation is less compelling, since he articulated no acceptable reason for desiring new counsel and was already being represented by an experienced, court-appointed criminal lawyer. (See also People v. Heath (1976), 35 Ill. App. 3d 880, 342 N.E.2d 452; People v. Williams (1973), 14 Ill. App. 3d 572, 303 N.E.2d 575.) Defendant must show the court’s refusal to allow him additional time to find other counsel prejudiced him in some way (see People v. Solomon (1962), 24 Ill. 2d 586, 589-90, 182 N.E.2d 736), a factor absent in this case. We find no error.

II

The State failed to inform Mims that Officer Jones intended to testify that Mims had shot at him outside the tavern, which defendant claims requires that his case be reversed and remanded for a new trial. He asserts that Jones’ testimony in this regard tended to establish that he and Mahogany had acted in concert with respect to the armed robberies and murders which had allegedly occurred inside the tavern that evening. Jones’ testimony, however, related only to what happened at the tavern after the alleged murder and armed robberies had already occurred. Simmons, Patterson and Williams witnessed and testified as to these crimes, which evidence implicated him and upon which he was convicted, not that given by the police.

Mims quotes language from People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251, and contrasts that case with his. In Burgin, the girl who had been raped testified at a preliminary hearing that Burgin had said to her, “Let me get on you for five minutes.” (74 Ill. App. 3d 58, 61.) The court reporter mistakenly transcribed her testimony as “How about you getting on for five minutes.” (74 Ill. App. 3d 58, 71.) Defense counsel had apparently intended to impeach the girl’s testimony at trial with this testimony by suggesting that Burgin had simply invited her to go for a ride with Burgin on his bicycle and that she had misconstrued his words. The State’s Attorney handling the case caught this mistake the night before defense counsel attempted to use it when he listened to a tape recording of that proceeding but did not bring it to counsel’s attention until it became apparent to him that defense counsel intended to use this incorrectly transcribed testimony in exactly this way. After alluding to Supreme Court Rules 412 and 415 (73 Ill. 2d Rules 412, 415), the court in Burgin concluded that defendant’s right to confront the witnesses against him had not been violated, that he had not been prejudiced by the State’s failure to alert him to this error in the transcript and that his lawyer had effectively cross-examined the girl. In the instant case, counsel for defendant effectively impeached Jones’ testimony by introducing the stipulated testimony of a firearms expert to the effect that the gun Jones testified Mims had used to shoot at him had not been fired that evening. In fact, the court ultimately found him not guilty of all the charges relating to Mims’ alleged conduct outside the tavern that evening. There is therefore no basis here upon which to reverse Mims’ conviction.

III

According to Mims, the State should be required to preserve some record of the statements occurrence witnesses make to State’s Attorneys who interview them shortly after the crimes they have witnessed have occurred. He relies upon the language and reasoning of the court in People v. Taylor (1977), 54 Ill. App. 3d 454, 369 N.E.2d 573. In Taylor, defendant’s conviction for the unlawful delivery of heroin was overturned where the State could not provide defendant with any of the substance seized because the State had allegedly consumed all of it in tests that it had conducted to determine the nature of the substance. The court noted that these tests were not infallible and held that the State had a duty to preserve some part of the substance so that defendant could obtain an independent chemical analysis of the nature of the substance. The court concluded that defendant had been denied due process of law and the opportunity for meaningful cross-examination of the witnesses against him because the State had unnecessarily consumed all of the allegedly controlled substance defendant had had in his possession at the time of his arrest. Mims argues by analogy that the State should be required to preserve “some skeleton outline — a well chosen phrase or two summarizing what the witness said.”

Supreme Court Rule 412 (73 Ill. 2d R. 412) concerns the State’s responsibility to provide defense counsel with the information that he desires. Nothing in that Rule requires the State to reduce a witness’ oral statements to writing and the courts have consistently held as we do that Rule 412 does not require the State to do so. People v. Witherspoon (1979), 69 Ill. App. 3d 391, 398, 388 N.E.2d 1; People v. Abbott (1977), 55 Ill. App. 3d 21, 24, 370 N.E.2d 286; and People v. Caldwell (1976), 39 Ill. App. 3d 1, 5, 349 N.E.2d 462.

IV

Mims’ last contention is that the extended-term sentences he received on both counts of armed robbery should be reduced to ordinary terms because he had already received an extended term sentence for murder, the most serious offense for which he was convicted, relying upon People v. Walsh (1981), 101 Ill. App. 3d 1146, 428 N.E.2d 937, and, by implication, on People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520. Section 5 — 8—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—8—2) provides that an offender shall not be sentenced to a term of imprisonment in excess of the maximum sentence authorized by section 5 — 8—1 for the class of the most serious offense of which the offender was convicted, unless the factors in aggravation set forth in section 5 — 5—3.2(b) are found to be present. The language in Evans upon which defendant relies in his proposed construction of section 5 — 8—2 is the statement by the supreme court: “We recognize that the present legislative scheme could lead to the anomalous result of insulating a defendant from receiving an extended sentence for an offense accompanied by wanton cruelty by virtue of his conviction of a more serious offense.” (People v. Evans (1981), 87 Ill. 2d 77, 88.) In Walsh, we concluded, on the basis of the Evans language, that section 5 — 8—2(a) permitted an extended term sentence to be imposed upon a defendant only for the most serious offense for which he had been convicted. See also People v. Freeman (1982), 104 Ill. App. 3d 980, 985, 433 N.E.2d 974.

The State maintains that Walsh and Freeman are in direct conflict with the supreme court’s decision in People v. Williams (No. 51870, filed April 16, 1982) (Williams I). Rehearing of that decision was allowed and the cause has now been reversed and remanded for a new trial based upon the supreme court’s questioning, under the unique fact situation presented there, whether defendant had been deprived of his constitutional right to the assistance of counsel in light of a disciplinary case involving defendant’s attorney which had thereafter come to the attention of the court. The subsequently issued Williams opinion, People v. Williams (1982), 93 Ill. 2d 309 (Williams II) left undisturbed the supreme court’s analysis of the sentencing issue. We find that discussion instructive with respect to the proper resolution of the same issue arising in the instant case.

In Williams I, the supreme court noted that the sentences of defendant to 60 year extended terms for the aggravated kidnaping convictions were in error because the offenses, Class 1 felonies, may not result in extended-term sentences of more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, pars. 10—2, 1005—8—2.) As to defendant’s claim there that the language of the extended term statute requires that both factors in aggravation be found before an extended term may be imposed, the supreme court first determined that the trial court finding of either factor was sufficient to permit the imposition of an extended term. The court went on to hold that the extended terms for rape were properly imposed and that the extended terms for aggravated kidnaping were also properly imposed but were required to be reduced to 30 years for the reasons earlier indicated. From the foregoing analysis, the clear implication is that extended-term sentences may be imposed in appropriate circumstances, for different classes of offenses, even in those situations where the offenses are not the most serious for which an offender is convicted.

Here, the trial court found that defendant was convicted of the instant felonies after having been previously convicted in Illinois of the same or greater class felony, within 10 years (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(bXl)) and that the instant crimes were accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(bX2).) Those findings are supported by the record. Accordingly, we depart from our holding in People v. Walsh and find that the circuit court’s sentencing of defendant to extended terms for armed robbery was correct under section 5 — 8—2, notwithstanding his having received also an extended term sentence for murder.

For the reasons aforesaid, we find no basis for reversal of the defendant’s conviction and sentences, and we affirm.

Affirmed.

STAMOS, P.J., and PERLIN, J., concur.

      Mahogany is not involved in this appeal.

      So spelled in the transcript.


author: JUSTICE O’CONNOR

text:
    BANK OF LINCOLNWOOD, Plaintiff-Appellant, v. COMDISCO, INC., Defendant-Appellee.
    First District (1st Division)
    No. 81—2778
    Opinion filed December 27, 1982.

      Nathan H. Dardick and Ellen J. Barron, both of Dardick & Jadwin, of Chicago, for appellant.

      Arthur M. Solomon and Lois Solomon, both of Coles & Griffin, Ltd., of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Bank of Lincolnwood (Bank), sued defendant, Comdisco, Inc. (Comdisco), in a three-count amended complaint for breach of an oral contract to borrow money upon discounted equipment leases (count I), for unjust enrichment (count II), and for misrepresentation (count III). The Bank appeals from the dismissal of its amended complaint.

Count I asserts that Comdisco requested meetings to discuss the possibility of obtaining advances from the Bank by discounting the future rental payments of computer equipment leases. Both parties “orally mutually agreed” that advances could be made by discounting the leases at rates to be determined on a later date. This agreement was conditioned upon the acceptance by the Bank of the creditworthiness of each lessee under the lease to be discounted. On or about April 29, 1980, 16 leases were submitted to the Bank by Comdisco. Creditworthiness of the lessees was evaluated by the Bank. On May 2, 1980, the Bank approved the credit of the lessees “under at least” 13 of the leases, such leases to be discounted at a rate of 16%. The Bank and Comdisco negotiated a lower rate of 151/2% and, on May 2, 1980, Comdisco accepted the Bank’s offer to discount the leases at 151/2%. Between May 15, 1980, and June 1, 1980, Comdisco submitted 19 additional leases to the Bank, requesting a discount rate of 131/2%. On or about June 1, 1980, the Bank orally confirmed it would discount the leases. Comdisco sent a letter to the Bank, dated June 3, 1980, which recapped the status of “various transactions.” After a drop in interest rates, Comdisco requested the 151/2% interest rate of the first group of leases be lowered. The Bank refused “to modify its agreement with Comdisco” in that respect. Comdisco then “failed to comply with its obligation to discount” the leases with the Bank.

In count II the Bank incorporates the facts stated in count I and further alleges that Comdisco “wilfully and intentionally” discounted the leases with private investors at lower interest rates, that such actions deprived the Bank of the benefits of its agreement and that Comdisco was unjustly enriched.

Count III includes the facts alleged in both counts I and II and further alleges that Comdisco planned and schemed to benefit from the drop in interest rates and that Comdisco misrepresented its commitment to discount leases with the Bank. Both counts II and III seek compensatory and punitive damages and costs of the litigation.

Attached to the amended complaint is the letter dated June 3, 1980, from Comdisco to the Bank. By its own language, this letter “recap[s] the status of various transactions recently committed to by the Bank of Lincolnwood along with anticipated funding dates.” The letter contains a list of 20 leases, the interest rate, estimated proceeds and anticipated funding date for each lease.

Without filing an answer, Comdisco moved to dismiss the amended complaint. Based on section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), now section 2—615 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2—615), the motion attacked the amended complaint as substantially insufficient at law. After hearing arguments, the trial court granted the motion.

The Bank contends that a lender has a valid cause of action for breach of contract against a borrower who breaches a commitment to borrow. Comdisco’s position is that no such remedy exists. The Bank argues that courts have long recognized that a cause of action exists for recovery against a borrower who fails to honor his commitment to borrow, citing Walter E. Heller & Co. v. American Flyers Airline Corp. (2d Cir. 1972), 459 F.2d 896.

Illinois cases appear to be in agreement with the Bank’s contention. In H. F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 322 N.E.2d 45, a borrower deposited promissory notes with a loan application. After the borrower went elsewhere for a loan, the lender sued. In affirming a judgment for the lender on the notes, the supreme court said (59 Ill. 2d 465, 473):

“The purpose of depositing the notes in lieu of the standby fee was to obtain the commitment from the lender that the mortgage funds would be made available in accordance with the terms of the loan agreement. The record shows that such commitment was obtained, and when [the borrower] breached its agreement to borrow the money thus committed, plaintiff was entitled to demand payment of the notes. We have considered Suson’s contentions that there was no consideration for the standby fee and that it cannot be recovered by plaintiff for the reason that it was a penalty, and not liquidated damages, and find them to be without merit.”

Likewise, this court has recognized that a lender may incur damages when it promises to commit a specified sum of money for a specified time. (Applegate-Leason & Co. v. Reilly (1978), 61 Ill. App. 3d 120, 377 N.E.2d 1135.) There, we found the borrower promised to pay a service charge in consideration of the lender’s promise to commit funds for a specified time; thus the lender was entitled to demand payment of the service charge when the borrower breached his agreement to borrow. 61 Ill. App. 3d 120, 123-24.

A common denominator in this type of case is the existence of a contract, a commitment agreement or a loan application. The binding effect of an oral loan commitment, however, was recognized in Coast-land Corp. v. Third National Mortgage Co. (4th Cir. 1979), 611 F.2d 969. In that case, a borrower sought damages from a lender for a breach of an oral commitment to provide construction financing. The court upheld an award of damages for one-half of the expenses the lender knew the borrower incurred in preparing for its construction project. 611 F.2d 969, 979.

From the above authorities, we hold that a lender may have a cause of action when a borrower breaches a loan agreement, whether oral or written.

The controlling question before us is whether the Bank’s amended complaint states a cause of action against Comdisco. We have passed on the legal sufficiency of count I above. Next, we address the issue of whether this count is factually sufficient. To be factually sufficient, a complaint must plead facts which bring the claim within the legally recognized cause of actin alleged. People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005.

The Bank argues that it has alleged with particularity the elements needed to state a cause of action for breach of contract. The Bank also relies on the oft-stated policy of Illinois courts to construe pleadings liberally and that a party is not required to plead its proof. On the other hand, Comdisco asserts the complaint is deficient in that it lacks the essential terms necessary to allege a contract and that the allegations are conclusionary in nature.

Section 2 — 601 of the Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2—601) requires that substantial allegations of fact are necessary to state a cause of action. Well-pleaded facts are to be taken as true for purposes of a motion to dismiss. (Kuch & Watson, Inc. v. Woodman (1975), 29 Ill. App. 3d 638, 331 N.E.2d 350.) However, such a motion does not admit conclusions of law or of fact unsupported by allegations of specific facts upon which such conclusions rest. Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885.

A general allegation that a contract exists is, in the absence of a statement of supporting facts, a mere legal conclusion not admitted by a motion to dismiss. (Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 341 N.E.2d 101; McErlean v. Union National Bank (1980), 90 Ill. App. 3d 1141, 414 N.E.2d 128, appeal denied (1981), 83 Ill. 2d 571.) The pleader must allege facts sufficient to indicate offer, acceptance and consideration. (Barnes v. Peoples Gas Light & Coke Co. (1968), 103 Ill. App. 2d 425, 243 N.E.2d 855; Pollack v. Marathon Oil Co.) In ordering the dismissal of this cause, the trial court was most concerned with the pleading of sufficient ultimate facts necessary to show a contract to loan was made.

In Carriage Way West, the supreme court confronted the issue of whether ultimate facts were pleaded. There it was stated, “ '*** only the ultimate facts to be proved should be alleged and not the evidentiary facts tending to prove such ultimate facts.’ ” (88 Ill. 2d 300, 308, citing Board of Education v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 446-47.) In that case, an antitrust action, it was alleged that the various defendants entered into an agreement to fix and control greens fees charged to the public. The court stated, “[a]s for factual sufficiency, the ultimate facts needed to prove a violation of section 3(l)(a) [of the Illinois Antitrust Act (Ill. Rev. Stat. 1981, ch. 38, par. 60—3(1)(a))] are agreements among those who would otherwise be competitors for the purpose or with the effect of fixing the price charged for any goods or services received.” (88 Ill. 2d 300, 309.) The court further stated that “[t]he line between conclusions of law and ultimate facts is sometimes dim.” 88 Ill. 2d 300, 310.

Likewise, in the case before us the ultimate facts needed to prove a breach of contract are those showing an agreement between the Bank and Comdisco and the circumstances of the alleged breach by Comdisco. The Bank alleges an agreement was entered into by which Comdisco would borrow funds from the Bank by discounting equipment leases. Allegations of negotiations between the parties are made, revealing that the discounting of a number of leases was contemplated at various interest rates. Count I contains allegations, express or implied, of terms material to the alleged contract, such as the duration of the loan and the rates of interest. These allegations contain sufficient information reasonably to inform Comdisco of the nature of the claim made by the Bank. (Ill. Rev. Stat. 1981, ch. 110, par. 2—612(b).) We hold that count I is legally and factually sufficient to state a cause of action for the breach of a loan agreement.

The basic thrust of count II is a claimed cause of action for restitution based on unjust enrichment or on a contract implied in law. Central to the allegations are the allegations from count I pertaining to the negotiation of an agreement between the Bank and Comdisco. The Bank alleged that funds were set aside to lend to Com-disco pursuant to the agreement. It is the Bank’s theory that Com-disco was unjustly enriched at the Bank’s expense when the leases were discounted elsewhere. Thus, it is alleged, the Bank was deprived of the benefits of the agreement.

With reference to unjust enrichment, the court in First National Bank v. Glenn (1971), 132 Ill. App. 2d 322, 324, 270 N.E.2d 493, said:

“A contract implied in law is equitable in its nature and is one which reason and justice dictate. It does not arise from an intent to contract or a promise to pay. It exists where there is a plain duty and a consideration. The consideration may be a parting with something by the party seeking to enforce the contract; the promise is presumed so that there will not be a failure of justice. Its essential element is the receipt of a benefit by one party which would be inequitable for that party to retain. It is predicated on the fundamental principle that no one should unjustly enrich himself at another’s expense. [Citations.]”

We hold that count II states sufficient facts to state a cause of action for unjust enrichment and was thus improperly dismissed.

Count III, however, does not state a cause of action for fraudulent misrepresentation. This count incorporates the allegations of count I and the allegations of count II of a plan or scheme by Com-disco to profit from the drop in interest rates; it also alleges that Comdisco misrepresented its commitment to discount leases with the Bank, that Comdisco knew these representations were false and misleading and that the Bank would rely on the representations.

The surrounding circumstances and the alleged reasons for the misrepresentations made by Comdisco, particularly the drop in interest rates, all took place after the alleged agreement occurred. Assuming these misrepresentations were made, the Bank could not have been induced by them to act or to enter into an agreement. Thus, this essential element of a cause of action for fraudulent misrepresentation is lacking. See Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 402 N.E.2d 599.

The Bank also alleges that Comdisco made misrepresentations regarding its continuing intention to discount leases with it. It is a general rule that a promise to perform an act, though accompanied at the time with an intention not to perform it, is not such a false representation as will constitute fraud. (Goldberg v. Goldberg (1981), 103 Ill. App. 3d 584, 431 N.E.2d 1060, citing Roda v. Berko (1948), 401 Ill. 335, 81 N.E.2d 912; Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 371 N.E.2d 634.) The Bank’s assertion that this rule is no longer followed (relying on George William Hoffman & Co. v. Capital Services Co. (1981), 101 Ill. App. 3d 487, 428 N.E.2d 600, and Vance Pearson, Inc. v. Alexander (1980), 86 Ill. App. 3d 1105, 408 N.E.2d 782) is without merit. Nor is this count sufficient to come within the exception to that rule, i.e., that where a false promise or representation of future conduct is alleged to be a part of a scheme employed to accomplish the fraud, it is actionable. (Goldberg v. Goldberg.) It does not allege sufficient facts from which a scheme can be inferred. (Goldberg v. Goldberg; Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909, 410 N.E.2d 55; Zaborowski v. Hoffman Rosner Corp. (1976), 43 Ill. App. 3d 21, 356 N.E.2d 653.) To sustain unsupported allegations of a plan or scheme as sufficient, as the Bank contends, would only invite this type of pleading every time multiple parties, who are jointly obligated under a contract, elect not to perform. (See Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909, 915.) Count III was properly dismissed.

Comdisco also attacks counts II and III because they improperly claim punitive damages and attorney fees. Because count III has been held to be properly dismissed, we need address this issue as to count II only.

The general rule as to punitive damages is that they are not recoverable in actions for breach of contract. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill. App. 3d 576, 420 N.E.2d 478, appeal denied (1981), 85 Ill. 2d 575, and the cases cited therein.) This rule does not apply, however, in exceptional cases where the breach amounts to an independent tort and there are proper allegations of malice, wantonness or oppression. (95 Ill. App. 3d 576, 580, citing Wallace v. Prudential Insurance Co. of America (1973), 12 Ill. App. 3d 623, 299 N.E.2d 344.) No basis is alleged from which to infer that Comdisco acted in such a manner. The allegations are also insufficient to support a basis for attorney fees. See F. D. Rich Co. v. United States ex rel. Industrial Lumber Co. (1974), 417 U.S. 116, 40 L. Ed. 2d 703, 94 S. Ct. 2157.

The order of the circuit court of Cook County dismissing Count III is affirmed. The order dismissing Counts I and II is reversed and the cause remanded for further proceedings consistent with this opinion.

McGLOON and GOLDBERG, JJ., concur.