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In Re Mccalmont

FEBRUARY 11, 1958.

IN MATTER ESTATE OF MARY ALICE MCCALMONT, DECEASED. KARL YOST, EXECUTOR, PETITIONER-APPELLEE,

v.

TAYLOR FITZGERALD, OBJECTOR-APPELLANT.



Appeal from the Circuit Court of Whiteside county; the Hon. A.J. SCHEINEMAN, Judge, presiding. Affirmed.

PRESIDING JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

The objector-appellant, Taylor Fitzgerald, a nephew of the decedent, is the residuary legatee and devisee and principal beneficiary under the will of Mary A. McCalmont, deceased, and is a resident of Ohio. Karl Yost, a resident of Illinois, as executor, on a petition to fix his fee, was allowed an executor's fee of $7,000 by the County Court of Whiteside county, Illinois, and on an appeal an order to the same effect was entered by the Circuit Court of Whiteside county. The appellant, who objects to the allowance of the fee, bases his objection upon the theory that the deceased was not a domiciliary of Illinois at the time of her death, but of Ohio; therefore, the situs of her intangible personal property, to the extent of $122,336.72 of stocks, bonds, and a note, was not in Illinois, but in Ohio; that the principal administration, even if Illinois were her domicile, was in Ohio, not Illinois, and Mr. Yost, the Illinois executor, performed no services as to the $122,336.72 of property in Ohio; that he was derelict; and that, under the circumstances, the executor's fee in Illinois should not exceed $2,625.

The County Court in a previous Illinois Inheritance Tax proceeding on an amended tax return found the total assets of the estate were $150,606.13, consisting of $14,050 of Illinois real estate, and $136,556.13 of personalty, and found, further, that the domicile of the decedent was in Illinois and the situs of all the personal property was Illinois, and assessed a tax of $8,821.43.

Mrs. McCalmont, a widow, died August 28, 1954, at Shelby, Ohio, at the residence of Taylor Fitzgerald, the appellant. In her will he was named co-executor with Mr. Yost, a Morrison, Illinois attorney, the petitioner appellee, Mr. Yost being a practicing attorney for about 22 years, and a neighbor of the decedent. The Probate Court of Richland county, Ohio, admitted her will to probate on September 14, 1954, finding her domicile to be in Ohio. Mr. Fitzgerald was appointed Executor in Ohio, Yost having declined to act there. Fitzgerald employed an Ohio attorney to represent him there. Subsequently, on November 15, 1954, Yost was appointed executor in an ancillary proceeding by the County Court of Whiteside county, Illinois, an authenticated copy of the will and a transcript of the Ohio proceedings being filed there.

Yost on March 23, 1955 filed an Illinois Inheritance Tax Return showing total assets in Illinois of $28,269.41, consisting of realty in the amount of $14,050, cash $7,686.01, household goods of $1,097.90, and stock certificates of $5,435.50, and he listed as a deduction or claimed a fee of $2,625 as executor, there being no tax indicated as due. The Attorney General of Illinois, however, questioned the domicile of the decedent, and later, after submission by Mr. Yost of some affidavits prepared by or under the supervision of Mr. Fitzgerald, the Attorney General determined the domicile was Illinois and asked that an amended return be prepared. Karl Yost, the Illinois executor, acquiesced in that and prepared an amended Illinois Inheritance Tax Return on that basis, showing a total of all assets in Illinois of $150,606.13, at the time of death, and he then listed as a deduction or claimed $10,663.20 as an executor's fee, showing an $8,821.43 tax due. He made no deduction therein for, and asserts no claim here for attorney's fees, and he employed no separate attorney in Illinois. The amended tax return listed no deduction for Federal estate tax, or attorneys' fees in Ohio, or Ohio inheritance tax, if there were any, relating to some of the same property. And the amended tax return included and listed as subject to tax certain tangible personal property, jewelry, which Mr. Yost said was physically situated in Ohio, not Illinois, while he was executor.

The requested executor's fee of $10,663.20 was reduced in the present proceeding to $7,000 on a hearing before the County Court on the present petition, there being an answer and objection by the present appellant. The chief objection was to the effect that the principal administration was in Ohio and only ancillary administration was had in Illinois. Yost made proof of the reasonableness of the executor's fee claimed. This consisted of the testimony of certain attorneys, namely, Mason Bull, of Morrison, and John Riordan, of Morrison. Attorneys Henry C. Warner, of Dixon and William H. Keho, of Amboy, testified for the objector-appellant. The testimony of all the attorneys indicated they based their opinions upon the amount of work done, as testified by Karl Yost, and the size of the estate. Although there were some variations in that testimony there is a sufficient and reasonable basis therein and in the other facts and circumstances in evidence for the conclusion reached in the order here involved as to what was a reasonable compensation. Disregarding the legal question and controversy as to whether the $122,336.72 part of the intangible personal property ought to be given any consideration for this purpose, the percentage relationship of the fee allowed to the total estate is within the relative percentages testified to by the objector-appellant's witnesses, so far as that particular factor is of significance in fixing an executor's fee. Such is, of course, one but only one of several factors to be considered on that question.

The will was dated March 2, 1954, less than six months before the testator's decease, was written in Ohio, and apparently attested in Ohio. The decedent stated in her will that she was of the city of Morrison, Illinois; in one of the clauses thereof making a gift of the balance of her personal effects, etc., she identified them as being "located in my residence on North Genessee Street, Morrison, Illinois"; and she nominated Karl Yost of that city as one of her executors. Mr. Yost did not prepare the will. The present Ohio attorney for the present objector-appellant prepared it. It appears from the evidence that she had been staying in Ohio for several months prior to the date of the will and up to the time of her death. She maintained her residence, that is her house, in Morrison, Illinois, however, where she had her furniture, and where she had lived for many years. She employed a caretaker to look after her home. She was buried at Morrison. She had her bank safety deposit box in the Smith Trust and Savings Bank, at Morrison, Illinois, and she had a bank account in that bank of $7,000. She apparently also had all of her stocks, bonds, and a note in that safety deposit box in Illinois until they were apparently removed by Taylor Fitzgerald, the present appellant, purporting to act under a power of attorney from the decedent, on August 28, 1954, at 9:05 a.m., about 15 minutes before (if it was before and not after) Mrs. McCalmont died the same date in Ohio at 10:00 a.m. eastern standard time. Those securities, at least, were apparently there October 22, 1953, the last date the decedent entered the box; they were not there November 28, 1955 when Mr. Yost entered it; Mr. Fitzgerald did not call on Mr. Yost on August 28, 1954, the date Mr. Fitzgerald was at the box; and he had not told Mr. Yost it was empty. Mr. Fitzgerald did not testify herein, nor did his Ohio attorney testify on his behalf.

There was no objection by the present objector-appellant to the finding by the County Court in the Illinois Inheritance Tax proceeding on the amended tax return to the effect that the domicile of the deceased was in Illinois and that the situs, therefore, of all the intangible personal property was in Illinois. The objector-appellant had notice and knowledge of the Illinois Inheritance Tax proceedings. He and his Ohio attorney cooperated with the Illinois executor to some extent in preparing that amended return by sending some necessary information as to some deductions. He did express, however, to the Illinois executor a protest as to the claimed executor's fee. He did not in the present proceedings on the executor's petition for fees seek to present any evidence to the effect that Illinois was not the domicile and Ohio was. In fact, the appellant apparently agrees that Illinois was the domicile and that Illinois was the situs of all the intangible personal property.

We agree with the Trial Court's finding that, it having been decided by the County Court that Mrs. McCalmont was domiciled in Illinois at the time of her death, it necessarily follows that the administration of her estate in Whiteside county, Illinois is not ancillary in fact, although it was begun as an ancillary administration. It follows, as a matter of law, that Mr. Yost, the executor in Illinois, is apparently legally responsible for all intangible personal property in the estate, and apparently has the legal responsibility of accounting in some manner pursuant to law for all the assets in the estate, — how he is to do so, and the details thereof, are matters not now before us. The Ohio Executor, the present objector-appellant, notwithstanding that finding of the Illinois Court, had apparently since August 28, 1954 and has continued to have in his physical possession certain of the intangible personal property consisting of certain stocks, bonds, and a note, of the value of $122,336.72, and as to those Mr. Yost, the Illinois executor, evidently did not have physical possession and performed no services in respect thereto except taking them into account, obtaining values therefore, listing them in the amended Illinois inheritance tax return, preparing the order thereon, paying the Illinois inheritance tax relative thereto, and collecting the note. No questions were presented so far in the probate proceedings in the County Court concerning the property inventoried, or the intangible personal property physically held by the appellant, the Ohio Executor, or concerning proper distribution thereof, or accounting therefore, or the circumstances of the physical possession of that property by the appellant, or what the detailed responsibilities may be of the Ohio executor in the premises, or concerning payment of costs of administration, taxes, debts, and legacies, and such are not involved here.

[2-7] In The People v. Union Trust Co. (1912) 255 Ill. 168, in speaking of the Illinois inheritance tax relative to a decedent domiciled in Illinois who had some intangible personal property, stocks and bonds of non-Illinois corporations and a bank account, in California, the Court said:

"We believe the authorities are a unit in holding that personal property within the jurisdiction of a foreign State may be made subject to a succession or inheritance tax in the place of the decedent's or testator's domicile. . . ."

The situs of intangible personal property, a promissory note (or stocks or bonds, for example) is the domicile of the decedent: People v. Forman (1926) 322 Ill. 223, even though the note be physically located elsewhere at the time of the decease. There is no constitutional objection to a law which lays an inheritance or succession tax according both to the principle of the domicile of the decedent and according to the principle of the situs of the property, although this may at times result in double taxation: People v. Union Trust Co., supra. The administration granted in the State of a decedent's domicile at the time of his death is the principal administration and that granted in another State is but ancillary: Young v. Wittenmyre (1888) 123 Ill. 303. The County Court was entitled to determine the decedent's domicile here to be Illinois, independent of what the Ohio Court may have determined. A domicile once established being presumed to continue, the burden of proof being on one who claims there has been a change, it being necessary to a change of domicile that there be an intention to change and that the change actually be made by abandoning the old and permanently locating in a new domicile, there can be no real doubt here but that Illinois continued to her decease to be the decedent's domicile: People v. Estate of Robert Moir (1904) 207 Ill. 180.

The appellant regards domicile of the decedent, however, as unimportant in the determination of this executor's fee and argues that regardless of Illinois being the domicile and regardless of Illinois being the situs of the intangible personal property for tax purposes, the intangible personal property to the extent of $122,336.72 is nevertheless the subject of administration only in the State of Ohio, and, therefore, cannot be given any consideration in determining the reasonableness of the executor's fee of the appellee. With this view we cannot agree. The County Court, and the Circuit Court, properly took into consideration the domicile of the decedent and the Illinois executor's legal ...


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