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Bawden v. Furlong

JANUARY 27, 1958.

EDNA A. BAWDEN, APPELLANT,

v.

FABER FURLONG ET AL., APPELLEES.



Appeal from the Circuit Court of Jo Daviess county; the Hon. LEON A. ZICK, Judge, presiding. Affirmed. PRESIDING JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 6, 1958.

On February 7, 1954 James E. Furlong died testate. His heirs were his nephews, Faber Furlong and Earl Furlong, his niece, Vivian Furlong Leglar, and a grandnephew and grandniece, Francis H. Furlong and Mary Theresa Furlong Roberts, the children of John Furlong, a nephew who had predeceased the testator.

The Will of James E. Furlong, deceased, was admitted to probate in the County Court of Jo Daviess county and the testator's nominee, Edna A. Bawden, his bookkeeper and principal business assistant for many years, qualified and was appointed executrix on February 16, 1954.

The estate included commercial and residential real property, several farm properties and an undertaking and furniture business which he had conducted for many years. By his will, Edna A. Bawden was left the commercial real estate housing the combined furniture store and funeral home, part of the residential real estate, certain personal property, a sum of money for masses, and the undertaking business. The decedent left to his niece, Vivian Furlong Leglar, the balance of the residential property, certain personalty, a cash legacy, and some of the farm lands. He devised to his nephews, Faber and Earl Furlong the rest of the farm lands. The Will bequeathed to John Furlong, the nephew who predeceased the testator, a cash legacy. The residuary estate, the principal asset thereof being the stock of furniture, was given to the niece, Vivian Furlong Leglar, and to the nephews, Faber, Earl and John Furlong to be divided among them in equal proportions, share and share alike (John Furlong being the nephew who predeceased the testator).

The instant case arises from an appeal to the Circuit Court by Edna A. Bawden, Executrix, from an order of the County Court, sitting in Probate, which sustained certain objections by the residuary legatees to the final account of the executrix, surcharged her for certain items of disbursement totaling $7,343.85, and otherwise approved the final account as amended. Of the surcharges of $7,343.85 made against the executrix, $6,436.77 related to disbursements made as a result of the furniture stock ($5,226.77 being for wages to the executrix and others as employees of the furniture store, $1,100 and $110, respectively, being surcharges for rents paid Edna A. Bawden), the sum of $805 was an attorney's fee in connection with a petition to remove the executrix and in connection with settlement of her and another attorney's fees, and the balance of $102.08 were eight miscellaneous items of disbursements to parties for whom no claims were filed or proved up. An appeal was also taken by the residuary legatees who contended the final account should have been surcharged for a larger amount. The two appeals were consolidated in the Circuit Court and heard together. From a judgment of the Circuit Court surcharging the final account in the identical amounts as did the County Court, and otherwise approving it, the executrix has appealed as to the parts thereof which order her to reimburse the estate $7,343.85 and to pay the costs, and the residuary legatees have cross-appealed as to the parts thereof overruling their objections to a claimed loss of $11,424.17 sustained by reason of the claimed illegal operation of the decedent's furniture business by the executrix, overruling their objections to a claimed loss of $13,704.25 sustained by the executrix' alleged failure to accept an offer of one Don Klavohn for the furniture merchandise, and overruling their objections to executrix' fees, attorney fees and expenses, and $2,500 paid Edna A. Bawden for masses.

Concurrently with the entry of the order surcharging the executrix, the court below entered another order overruling her motion to dismiss two of the five objectors to the final account. These two were Francis H. Furlong and Mary Theresa Furlong Roberts, the children of John Furlong, the nephew who had predeceased the testator. The executrix appellant's notice of appeal purports to appeal from that order also.

On appeal the executrix contends that: the Circuit Court erred in denying her motion to dismiss Francis H. Furlong and Mary Theresa Furlong Roberts; she was, first, erroneously surcharged for disbursements made pursuant to an agreement with the residuary legatees as to the method to be used to liquidate the stock of furniture; secondly, she was further erroneously surcharged for disbursements which were either debts of the decedent or ordinary and proper expenses of administration; and lastly, none of the surcharges were supported by the facts as established at the trial de novo in the Circuit Court.

It is the appellee's and cross-appellants' position that the trial court applied the law correctly at the time in overruling appellant's motion to dismiss Francis H. Furlong and Mary Theresa Furlong Roberts from the case, but that a subsequent Supreme Court case overruled the authority upon which the trial court had acted. They insist the Circuit Court ruled correctly as to the surcharge of $7,343.85. Their cross appeal is based upon several additional allegations. In addition to the amount surcharged the executrix, the appellees and cross-appellants in their brief claim additional improper disbursements and losses due to the conduct of the executrix, totaling $106,181.69.

There is no contention the executrix has failed to list in the account all receipts actually received, or that she did not actually make all the disbursements listed. The questions arise over the propriety of certain disbursements and over certain alleged losses the objectors assert were due to the executrix.

The record clearly shows that shortly after the executrix commenced her administration of the estate a substantial difference of opinion arose as to the conduct of the affairs. Petitions, citations, and hearings followed petitions, citations, and hearings, culminating eventually in a petition to remove the executrix. Thereafter the executrix tendered her resignation. An administrator de bonis non with the will annexed was appointed, and the executrix was directed to file an itemized accounting of her receipts and expenditures from the date of her appointment to June 24, 1955.

On July 1, 1955 the executrix filed her final report. Objections thereto were made by Faber Furlong, Earl Furlong, Vivian Furlong Leglar, Francis H. Furlong and Mary Theresa Furlong Roberts as residuary legatees and devisees. Later, on December 16, 1955, the executrix filed an amendment to her final report, wherein she took credit for certain other items of expenditure. On February 21, 1956 the cause came on for hearing before the County Court on the final account, as amended, which court approved the final account and amendments thereto with the exception of the items totaling $7,343.85 which amount the executrix was ordered to reimburse the estate.

On appeal, the case was heard de novo by the Circuit Court. In that court the executrix filed a motion to dismiss Francis H. Furlong and his sister, Mary Theresa Furlong Roberts, children of John Furlong, the nephew who predeceased the decedent. It was the sense of the motion to dismiss that under the circumstances those two objectors had no interest in the estate so as to be aggrieved persons qualified to appeal under Section 330 of the Probate Act (1955 Ill. Rev. Stats., Chap. 3, Par. 484).

Concurrently with the entry of the order surcharging the executrix with the same amount as did the County Court, the Circuit Court entered, as we have said, another order overruling the executrix' motion to dismiss those two objectors.

Prior to the 1955 amendment to Section 49 of the Probate Act (Ill. Rev. Stats., 1955, Chap. 3, Par. 200) it might have been said that a lapsed residuary legacy becomes intestate property. Under that view Francis H. Furlong and his sister Mary would have had an interest in the estate as heirs which would be affected by the surcharges of the final account, and would have had an interest so as to be aggrieved persons qualified to appeal. The 1955 amendment eliminated the possibility of such intestacy by providing that a lapsed residuary gift passes to the remaining residuary legatees or devisees. The testator here, however, died in 1954. The trial court was apparently pursuaded that the point raised by the motion to dismiss was governed by such cases as Dorsey v. Dodson (1903) 203 Ill. 32; Dickinson v. Belden (1915) 268 Ill. 105; ...


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