2018 IL App (1st) 180131 

SECOND DIVISION 

November 20, 2018 

No. 1-18-0131 

ARIEL BRENNER and TERRY BRENNER, ) 

) Appeal from the 

) Circuit Court of 

Plaintiffs-Appellees, ) Cook County, Illinois 

) 

v. ) No. 2016 CH 08145 

) 

EVELYN STATSINGER TRUST and ) Honorable 

RICHARD GRAY GALLERY, ) Neil H. Cohen, 

) Judge Presiding. 

Defendants-Appellants. ) 

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion. 

Justices Pucinski and Hyman concurred in the judgment and opinion. 

OPINION 

¶ 1 After a bench trial, the circuit court declared that plaintiffs-appellees, Ariel Brenner and 

Terry Brenner, were the rightful owners of certain works of art created by Evelyn Statsinger and 

that defendants-appellants, the Evelyn Statsinger Trust and Richard Gray Gallery, had no 

ownership interest in those artworks. Defendants appeal, contending that Statsinger’s possession 

of the artworks for nearly 20 years prior to her death created a legal presumption of ownership 

and that plaintiffs adduced no competent evidence to rebut that presumption. We disagree and 

affirm. 

¶ 2 In 2016, Ariel and Terry filed this lawsuit seeking a declaration that they were the owners 

of the artworks and seeking their return. After defendants’ motions to dismiss and for summary 

judgment were denied, the matter was set for trial. 

¶ 3 No court reporter was present for the bench trial. Only Ariel and Terry testified. They 

were not cross-examined, and other than two exhibits—the provenance of one of the artworks 
 

 

 

 

 

 

No. 1-18-0131 

and the consignment agreement with the gallery—defendants presented no evidence. We draw 

the following facts from a bystander’s report in the record. 

¶ 4 In the 1950s or 1960s, Daniel and Rachel Brenner, parents of Ariel Brenner and her late 

brother, Jonathan Brenner, purchased four works of art from Statsinger: “Final Burial of a Very 

Young Dead One,” “Land and Sea,” “Composition,” and an unnamed piece, “Untitled.” From 

the time of their purchase until approximately 1996, the artworks were displayed in homes 

owned by the Brenners in Chicago and Door County, Wisconsin. Statsinger and the Brenners 

were friends. Daniel Brenner died in 1977 and Rachel Brenner died in 1990. Ariel and Jonathan 

inherited the works after Rachel’s death. Jonathan died intestate in 2010, leaving his widow, 

plaintiff Terry Brenner, as his only heir. 

¶ 5 At some point in 1996, the works were transferred to Statsinger. The transfer took place 

in Door County at the home formerly owned by Daniel and Rachel. Ariel was aware that 

arrangements had been made to transfer the artworks to Statsinger, but she was not present when 

the transfer took place. As reflected in a photograph taken that day (which is not in the record), 

Terry, Jonathan, their young daughter, Statsinger, and Statsinger’s husband were present when 

the artworks were transferred. Terry believed the artworks were loaned to Statsinger to facilitate 

a long-contemplated retrospective of her career. Ariel never agreed to gift her interest in the 

artworks to Statsinger. Statsinger retained possession of the works until her death in February 

2016. 

¶ 6 In 2015, the Richard Gray Gallery agreed to mount a retrospective of Statsinger’s work. 

Valerie Carberry, an employee of the gallery, visited Statsinger at her home several times before 

the show and observed the works transferred to her by the Brenners, among others, prominently 

displayed on her walls. When Statsinger consigned the works to the gallery, she signed a 

- 2 ­
 

 

 

 

 

No. 1-18-0131 

document representing that she owned all the works. All of the artwork later displayed at the 

gallery was listed for sale. Ariel attended the show and discovered that, with the exception of 

“Composition,” which was not on display, the remaining artworks transferred to Statsinger were 

offered for sale. 

¶ 7 The trial court ruled in favor of plaintiffs, and defendants timely appealed. 

¶ 8 Defendants contend the standard of review is de novo; plaintiffs do not address the 

standard of review in their brief. We disagree that de novo review applies. Because this case was 

resolved after trial and involves the trial court’s assessment of the evidence presented by the 

parties, the appropriate standard of review is whether the result is against the manifest weight of 

the evidence. Konfrst v. Stehlik, 2014 IL App (1st) 132113, ¶ 11 (trial court’s findings that 

property belongs to a particular person will not be disturbed unless contrary to the manifest 

weight of the evidence). A decision is against the manifest weight of the evidence only where the 

opposite conclusion is apparent or where the court’s findings are arbitrary, unreasonable, or not 

based on the evidence. Id. We afford deference to the trial judge’s factual findings because he or 

she “was in a superior position to judge the credibility of the witnesses and determine the weight 

to be given to their testimony.” Buckner v. Causey, 311 Ill. App. 3d 139, 144 (1999); Konfrst, 

2014 IL App (1st) 132113, ¶ 11. 

¶ 9 Generally, a presumption of ownership arises from possession of property. People v. 

Four Thousand Eight Hundred Fifty Dollars ($4,850) United States Currency, 2011 IL App 

(4th) 100528, ¶ 17; Gilbert v. National Cash Register Co., 176 Ill. 288, 297 (1898) (“The party 

in possession of personal property is presumed to be the owner of it, possession being one of the 

strongest evidences of title to personal property.”). 

- 3 ­
 

 

 

 

 

 

No. 1-18-0131 

¶ 10 But if the party challenging the presumption of ownership arising from possession 

presents evidence to rebut the presumption, the presumption ceases to exist. “[O]nce evidence is 

introduced contrary to the presumption, the bubble bursts and the presumption vanishes.” 

Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 462 (1983); Swiecicki v. Swiecicki, 

255 Ill. App. 3d 1037, 1040 (1994) (son claimed $20,000 given to him by his father was a gift 

rather than a loan: “Even if we assume that a presumption of a gift has been raised by the 

defendants, it ceases to operate once contrary evidence is introduced.”). If evidence rebutting the 

presumption is introduced, then the case is decided on basis of evidence presented at trial as if no 

presumption had ever existed. Franciscan Sisters, 95 Ill. 2d at 460 (citing Diederich v. Walters, 

65 Ill. 2d 95, 100-01 (1976)). 

¶ 11 The party challenging a presumption must adduce evidence “ ‘sufficient to support a 

finding of the nonexistence of the presumed fact.’ ” Id. at 463 (quoting Michael H. Graham, 

Presumptions in Civil Cases in Illinois: Do They Still Exist? 1977 S. Ill. U. L.J. 1, 24). The 

quantum of evidence necessary to rebut a particular presumption “is not determined by any fixed 

rule” (id.) and depends on the circumstances of each case (id. (citing Wunderlich v. Buerger, 287 

Ill. 440, 445 (1919))). For example, when a substantial bequest is made to the testator’s attorney 

under a will, a strong presumption of undue influence arises, and the evidence necessary to rebut 

that presumption must be clear and convincing. Id. at 464-65. In contrast, where, as here, no 

fiduciary relationship exists between the parties, the degree of proof necessary to rebut the 

presumption of ownership arising from possession of personal property is correspondingly lower. 

¶ 12 If the presumption of ownership based on possession of property ceases to exist, the 

possessor of property who claims that the property was a gift must establish by clear and 

convincing proof the donor’s intent to make a gift. Schramm v. Schramm, 13 Ill. 2d 281, 288 

- 4 ­
 

 

 

No. 1-18-0131 

(1958) (“It has many times been stated by this court that to establish a gift the proof must be 

clear and convincing, and the burden is upon the alleged donee to prove the existence of a 

donative intent.”); Koerner v. Nielsen, 2014 IL App (1st) 122980, ¶ 13 (in replevin action, once 

plaintiff makes a prima facie showing of entitlement to possession, burden shifts to defendant to 

establish by clear and convincing evidence that property was a gift). Clear and convincing 

evidence is defined as “the quantum of proof that leaves no reasonable doubt in the mind of the 

fact finder as to the truth of the proposition in question.” Bazydlo v. Volant, 164 Ill. 2d 207, 213 

(1995). It is something “more than a preponderance while not quite approaching the degree of 

proof necessary to convict a person of a criminal offense.” Id.; see also In re D.T., 212 Ill. 2d 

347, 362 (2004). 

¶ 13 Defendants correctly argue that plaintiff bore the burden to rebut the presumption of 

ownership arising from Statsinger’s possession of the artworks for nearly 20 years before they 

were consigned to the gallery. Defendants maintain that plaintiffs failed to present evidence 

sufficient to rebut the presumption. We disagree. 

¶ 14 The artworks were purchased by Daniel and Rachel Brenner and they passed by 

inheritance to their children when Rachel passed away in 1990. When those works were 

transferred to Statsinger in 1996, it was Ariel and Jonathan’s intent that was relevant, and 

according to the bystander’s report, Ariel did not intend to gift her interest in the works to 

Statsinger in 1996 and, as far as Terry understood, neither did Jonathan. See Koerner, 2014 IL 

App (1st) 122980, ¶ 19 (donative intent determined at the time of the transfer of property). The 

affirmative testimony of one of the owners of the artworks that when they were transferred in 

1996, she did not intend to gift the works to Statsinger, which the trial court was entitled to and 

did accept, is a strong indication that no gift was intended. Particularly since defendants elected 

- 5 ­
 

 

 

No. 1-18-0131 

not to cross-examine either Ariel or Terry, once this evidence was presented to the trial court, the 

presumption arising from Statsinger’s physical possession of the works ceased to operate. It was 

then defendants’ burden to show by clear and convincing evidence that the transfer was intended 

as a gift. Given that (i) Statsinger’s longstanding possession of the works, standing alone, could 

not satisfy defendants’ burden and (ii) defendants presented no other evidence of donative intent, 

it necessarily follows that the trial court correctly ruled in favor of plaintiffs. 

¶ 15 Both parties were constrained in proving their respective positions by the provisions of 

the Dead Man’s Act (735 ILCS 5/8-201 (West 2016)). The trust was defending as a 

representative of Statsinger. Jonathan, one of the claimed donors, was deceased, as were 

Statsinger, the alleged donee, and her husband, who was present when the works were 

transferred in 1996. There was clearly more to the story than was presented to the trial court. For 

example, the complaint contained detailed allegations of conversations between Ariel and 

Statsinger regarding the loan of two of the works for the retrospective and between Rachel and 

Statsinger, before Rachel’s death, regarding the loan of two other works. Also, defendants 

identified in discovery a third party who drove Statsinger and her husband to pick up the works 

in 1996 who testified in a deposition to overhearing conversations between Ariel (who was not 

present at the time of the transfer) and Statsinger indicating that Ariel was giving Statsinger the 

works because she had no place to display them. Any effort by defendants to introduce evidence 

favorable to their position and involving conversations with Statsinger regarding the transfer of 

the works would have opened the door to other unfavorable evidence. Id. § 8-201(a). (“If any 

person testifies on behalf of the representative to any conversation with the deceased *** or to 

any event which took place in the presence of the deceased ***, any adverse party or interested 

- 6 ­
 

 

 

No. 1-18-0131 

person, if otherwise competent, may testify concerning the same conversation or event.”). So the 

trial court was required to decide the case on the limited evidence presented. 

¶ 16 With respect to the only live testimony considered by the trial court, defendants contend 

that Ariel and Terry offered “self-serving” testimony. Attaching that label to evidence presented 

by a party is largely meaningless because, without more, all it implies is that the party adduced 

evidence favorable to its legal position. Both Ariel and Terry were competent to testify regarding 

donative intent at the time the works were transferred to Statsinger, which was the issue the trial 

court was called upon to determine. Further, it would have been obvious to the experienced trial 

judge that Ariel and Terry stood to gain if he found their testimony credible. And while Terry 

testified to her “impression” that the works were being loaned to Statsinger for display in an 

anticipated retrospective, Ariel affirmatively testified that she never agreed to gift her interest in 

the works to Statsinger. This evidence was competent and sufficient to overcome the 

presumption of ownership resulting from Statsinger’s possession of the artworks. 

¶ 17 The trial judge, who heard and assessed the credibility of the witnesses, was entitled to 

credit Ariel and Terry’s testimony over defendants’ assertion that Statsinger’s physical 

possession of the artworks and her representation to the gallery that she owned them was 

sufficient to establish donative intent. Consequently, the trial court correctly declared plaintiffs 

the rightful owners of the artworks. 

¶ 18 Affirmed. 

- 7 ­