No. 3--00--0906

	_________________________________________________________________

	IN THE APPELLATE COURT OF ILLINOIS

	THIRD DISTRICT

	A.D., 2001

ADRIENNE ALBRECHT, as Special )	Appeal from the Circuit Court

Adm. of the Estate of		)	for the 21st Judicial Circuit,

Harry C. Emhouser, Deceased,	)	Kankakee County, Illinois

	Plaintiff-Appellee,		)	

						)	

	v.					)	

						)	

MARLO JEAN POPP BRAIS,		)	No. 94--P--21

	Defendant-Appellant		)

						)

(St. John United Church of 	)

Christ, and Otho Kalo 		)

Congregationalist Church,	) 	Honorable

	Defendants-Appellees).	)	Sheldon Regan 	

						)	Judge, Presiding		 _______________________________________________________________

	JUSTICE BRESLIN delivered the opinion of the court:

_________________________________________________________________

	Plaintiff Duane J. O’Connor, as special administrator of the

estate of Harry C. Emhouser (Harry), filed a complaint against

defendants St. John United Church of Christ, Otho Kalo

Congregationalist Church (collectively churches), and Marlo Jean

Popp Brais (Brais) seeking a construction of the will to include

certain farmland in the estate.  The court ruled that the farmland

was part of the estate, and Brais appealed.  We affirm and hold

that the grantor of a deed in escrow must intend to part with all

dominion and control over the deed in order to effectuate delivery

and, thus, secure the deed’s validity.   

FACTS

	On June 19, 1994, Brais filed a petition for the probate of

Harry’s will and for the issuance of testamentary letters.  The will devised to the churches the farmland which is the subject of

this dispute.  Brais filed an inventory in which she included the

farmland as part of the estate.  Five months later, for reasons

that will be discussed, Brais filed an amended inventory whereby

she requested to exclude the farmland.  The churches objected to

the filing of the amended inventory.  

	O’Connor was appointed as special administrator.  He filed a

complaint seeking the inclusion of the farmland in the estate. 

O’Connor was subsequently replaced by plaintiff Adrienne Albrecht

as the special administrator.

	The following is a recitation of the parties’ joint stipulation of facts.  Harry and his wife, Rose Emhouser, jointly

owned the farmland that is the subject of this appeal.  On April

27, 1987, the Emhousers executed what was termed an "escrow"

agreement and a quit claim deed which they delivered to Courthouse

Title Service (Courthouse).  The escrow agreement provided that the

Emhousers would execute a quit claim deed for the farm, to be held

by Courthouse in favor of Brais, upon the following conditions:

	1.  The deed would not be recorded by Courthouse.

	2.	  The Emhousers reserved the right to revoke the escrow

agreement prior to the death of the survivor of the parties.

	3.	  Courthouse would not deliver the deed to Brais until

both  the Emhousers were deceased.

	Rose died in 1988, one year after the execution of the

agreement.  On July 2, 1990, Harry executed a will in which he

bequeathed the farmland to the churches.  At no time was any deed executed conveying the property to Courthouse as trustee.  But a

quit-claim deed conveying the property to Brais was delivered to

her after Harry’s death.         

	The trial court ruled that the farmland was part of the

estate.  No order of the court appears in the record.  The court

docket provides that Harry’s will was "an effective revocation of

the trust *** though the will had not become effective until the

date of death of the testator.  Therefore, the real property in

question is an assett [sic] of the estate."  Brais appealed the

court’s order.                    

ANALYSIS

	On appeal, Brais argues that the agreement between the Emhousers and Courthouse was actually a valid and binding trust. 

She argues that Harry’s will did not effectively revoke the trust

because, pursuant to Merchants National Bank v. Weinold, 22 Ill. App. 2d 219, 160 N.E.2d 174 (1959), and In re Estate of Anderson, 69 Ill. App. 2d 352, 217 N.E.2d 444 (1966), if a trust does not

specifically state that it is revocable by will, it is only

revocable by an inter  vivos act.  In this case, the agreement did not provide for its revocation by will; rather, the agreement

specifically provided that it could be revoked only during the

Emhousers’ lives.  Thus, Brais concludes, the court erred when it

determined that the farmland was part of the estate.  We cannot

agree. 

	To create a trust, it is necessary to specify the following

elements: (1) grantor or settlor; (2) trustee; (3) subject-matter or res of the trust; (4) beneficiaries; (5) the nature and quality of each beneficiary’s interest; and (6) the manner and time in

which the trust is to be performed. Wynekoop v. Wynekoop, 407 Ill. 219, 95 N.E.2d 457 (1950).  No particular form or words are

necessary to create a trust.  A court will assume an intention to create a trust, however, only when such intention can be fairly

presumed from the language of the instrument or the terms employed.

Golstein v. Handley, 390 Ill. 118, 60 N.E.2d 851 (1945).  	

	An escrow is defined as a written instrument that, by its

terms, imports a legal obligation, and that is deposited by the

grantor with a third party to be kept until the performance of a

condition or happening of an event, at which time it is to be

delivered to the grantee. Merchants National Bank v. Frazier, 329 Ill. App. 191, 67 N.E.2d 611 (1946).  Merely labeling an agreement

an "escrow" or a "trust" does not determine the real character of

the transaction to be accomplished.  Its true purpose must be

determined from the relations of the parties and their respective

rights and duties. Merchants, 329 Ill. App. at 202, 67 N.E.2d at 618.  

	A trustee holds legal title to property for the welfare of the

beneficiary, who holds equitable title.  An escrow agent, on the

other hand, is not vested with title to the property, though he may

be entrusted with possession and he may have power to pass title. Merchants, 329 Ill. App. at 200-01, 67 N.E.2d at 617.

	We hold that the agreement in this case was an escrow

agreement and not a trust.  Though not decisive by itself, the agreement was clearly denoted an "escrow agreement" throughout. 

More importantly, it did not give Courthouse legal title to the

property to hold for Brais.  Rather, title remained in the

Emhousers, and they retained the right to revoke the deed at any

time.  Because the agreement was not a binding trust, it was

unnecessary that the agreement provide for its possible revocation

by will in order for the deed to have been recalled by Harry’s

later testamentary act.  

	We turn now to the question of whether the deed giving Brais

title to the farmland was validly delivered in order to determine

whether the property should be excluded from Harry’s estate.

	The churches suggest that the deed was not properly delivered

and, thus, title did not vest in Brais at Harry’s death.  Brais

counters this argument by citing Bulatovic v. Dobritchanin, 252 Ill. App. 3d 122, 625 N.E.2d 26 (1993), for the proposition that the delivery of a deed to an escrow agent with a clear set of

instructions is "delivery" as required for the conveyance of a

gift. 

	It is a long-standing rule in Illinois that a deed which is validly delivered becomes effective at the time of its delivery and

cannot be revoked by a later act of the grantor.  Johnson v. Fleming, 301 Ill. 139, 133 N.E. 667 (1921); Bulatovic, 252 Ill. App. 3d at 130, 625 N.E.2d at 33.  Delivery of a deed is essential

to its validity, and delivery is a question of intent. Bulatovic, 252 Ill. App. 3d at 129, 625 N.E.2d at 32.  To be a completed

delivery, the grantor must have intended to part with all dominion, power and control over the deed.  Bulatovic, 252 Ill. App. 3d at 129, 625 N.E.2d at 32.  In cases of delivery of a deed in escrow to

a third person, the controlling question is whether the grantor

reserved the right to recall or revoke his action. Herron v. Underwood, 152 Ill. App. 3d 144, 503 N.E.2d 1111 (1987). 

	In the instant case, the Emhousers specifically provided in

the escrow agreement that the agreement could be revoked prior to

the death of either Harry or Rose.  As a result, the deed that was

the subject of that agreement was not properly delivered and, thus,

it could not effectively convey the property to Brais.  For the

same reason, it did not create a valid gift of the property to

Brais.  Because delivery was lacking, the farmland became part of

Harry’s estate at his death to be disposed of by his will. See

Herron, 152 Ill. App. 3d at 146, 156, 503 N.E.2d at 1113, 1120.  Accordingly, we affirm the trial court’s order finding that the

farmland was part of Harry’s estate.    

	For the foregoing reasons, the judgment of the circuit court

of Kankakee County is affirmed.

	Affirmed.

	LYTTON and McDADE, JJ., concur.