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In Re Estate of James

MAY 14, 1956.

IN MATTER OF ESTATE OF SAMUEL JAMES, DECEASED. C.A. WILLIAMS, ADMINISTRATOR OF ESTATE OF SAMUEL JAMES, DECEASED, ET AL., PETITIONERS,

v.

E.B. VAN SCOYK, EXECUTOR OF LAST WILL AND TESTAMENT OF SAMUEL JAMES, DECEASED, RESPONDENT. E.B. VAN SCOYK, APPELLANT,

v.

C.A. WILLIAMS, ADMINISTRATOR OF ESTATE OF SAMUEL JAMES, DECEASED, AND KATIE MITCHELL, SOLE HEIR, APPELLEES.



Appeal from the Circuit Court of Clark county; the Hon. GROVER W. WATSON, Judge, presiding. Affirmed.

JUDGE REYNOLDS DELIVERED THE OPINION OF THE COURT. Rehearing denied June 11, 1956.

Samuel James, a resident of Clark county, Illinois, died on August 29, 1950, at the age of 92. He was survived by his daughter, Katie Mitchell, an only child, and his sister Martha Spear. He left a purported will, by the terms of which he left all his property to his sister Martha Spear, except $500 which was bequeathed to the Presbyterian Church of Mattoon, Illinois, and 40 acres of land which was devised to the daughter Katie Mitchell, provided that in the event that Katie Mitchell contested the will, then the 40 acres was to go to the Baptist Church of Westfield, Illinois. The will was admitted to probate in the County Court of Clark county, and E.B. Van Scoyk was appointed executor. Afterwards, Katie Mitchell filed a suit in the Circuit Court of Clark county to contest the will. The first trial resulted in a hung jury. In the second trial the jury returned a verdict setting aside the will. A petition was filed in the County Court by the then executor E.B. Van Scoyk, and Martha Spear for authority to appeal the decision in the Circuit Court to the Supreme Court. This was denied by the County Court, but the appeal was perfected and in the case of Mitchell v. Van Scoyk, 1 Ill.2d 160, the Supreme Court affirmed the judgment of the Circuit Court. C.A. Williams was then appointed administrator of the estate. Afterwards, the then executor, Van Scoyk filed a final report as such executor in the County Court. Objections to this report were filed by the daughter, Katie Mitchell and C.A. Williams, Administrator. E.B. Van Scoyk as executor and Kenneth A. Green, attorney for the executor, having filed their petition for the fixing of fees of the executor and attorney, the petition for the fixing of fees and the objections to the final report were consolidated. On May 8, 1954, the County Court entered an order ruling on the final report and the objections thereto. The matter was continued pending the final determination of the case in the Supreme Court, and on June 28, 1954, the executor's compensation was fixed at $3,725 and the attorney's fees were allowed in the sum of $4,550, and the executor ordered to file an amended report within 30 days. From this order, both the objectors and Van Scoyk appealed to the Circuit Court. On March 2, 1955, the Circuit Court of Clark county entered an order that the said E.B. Van Scoyk, as executor, be charged with certain sums received by him as such executor, that he be allowed credit for certain expenses of the estate, fixed the fee of the executor at $1,900 and the attorney's fees at $3,300. The order further found that E.B. Van Scoyk, executor of the Last Will and Testament of Samuel James, owed to C.A. Williams, administrator of the Estate of Samuel James, deceased, the sum of $18,971.66, and ordered this paid to the estate.

On April 12th, 1955, the Circuit Court entered an amended order and in the amended order the cause was remanded to the County Court of Clark county, with instructions to enter an order modifying the order of the said County Court of Clark county, rendered June 28, 1954, with directions to enter an order in conformity with the findings of the Circuit Court as expressed in the opinion filed on March 2, 1955. From this order as amended, E.B. Van Scoyk as Executor, appeals to this court.

From the inheritance tax return filed for this estate it appears that the total value of the estate was $49,789.87, of which $23,332.37 was money, $57.50 was chattel property, and $26,400 was real estate. An additional sum of $6,304.77 shows on the final report as income from the real estate. In the final report filed by the executor, $13,000 was charged for attorney fees, and $5,250 was charged for executor's compensation. The attorney's fees were broken down as follows: Fees for administration of the estate $2,000; fees for defending first will contest case $3,750; fees for defending second will contest case $3,750; fees for appeal to the Supreme Court $3,500. The attorney fees were paid by the executor without order or authorization from the County Court.

The items in the final report of the executor, which were objected to are many and varied. It is not necessary for the purpose of this appeal to burden the record with all of them, and only those matters raised by the appellant in his appeal will be considered. These items are as follows:

1. That portion of said order which fixed the witness fees of Dr. L.H. Johnson at $2.70 and that of Dr. F.B. Weaver at $4.90 for testimony in the will contests instead of the $35 charged.

2. That portion of said order which states "insofar as the final report of E.B. Van Scoyk, Executor of the Last Will and Testament of Samuel James, Deceased, is at variance with this order, objections thereto are expressly sustained."

3. That portion of the order which:

(a) Disallows the charge of $35 paid to Dr. L.H. Johnson as a witness fee at the second will contest.

(b) Disallows the charge of $35 paid to Dr. F.B. Weaver as a witness at the second will contest.

(c) Disallows the fees of $100, $100, and $62 paid to Mrs. Trimble for second will contest.

4. That portion of the order which fixes the attorney's fee for administration at $1,000 instead of the $2,000 reported on the final report.

5. That portion of the order which fixes the attorney's fee at $1,400 for the first will contest case instead of the $3,750 reported on the final report.

6. That portion of the order which fixes the attorney's fee at $900 for the second will contest case instead of the ...


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