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In Re Estate of Kuhn

OCTOBER 31, 1967.

IN RE ESTATE OF J. PAUL KUHN, DECEASED. ARLEENE K. ELWOOD AND LURA K. FREEDLUND, PETITIONERS-APPELLANTS,

v.

WANDA H. KUHN, AS EXECUTOR OF THE PURPORTED LAST WILL AND TESTAMENT OF J. PAUL KUHN, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Kane County, Sixteenth Judicial Circuit, Probate Division; the Hon. CHARLES G. SEIDEL, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT. Rehearing denied December 1, 1967.

This is an appeal from an order denying a petition for removal of an executor. In his last will, J. Paul Kuhn named his wife, Wanda H. Kuhn, (herein referred to as "Mrs. Kuhn"), as executor. The will was admitted to probate, the decedent's widow qualified and letters testamentary were issued to her on April 26, 1966.

Under the terms of the will, the decedent left the bulk of his estate to his surviving spouse, and also made specific bequests of $5,000 to each of his two adult daughters — children of a prior marriage. On September 30, 1966, the two daughters commenced a proceeding to contest the will, and charged lack of testamentary capacity, actual and constructive fraud and undue influence on the part of Mrs. Kuhn. Then, on October 6, 1966, they commenced this proceeding for the removal of Mrs. Kuhn as executor.

The petition for removal charged that Mrs. Kuhn had become incapable of or unsuitable for the discharge of her duties as executor (1) by reason of the fact that she had a personal interest in the outcome of the will contest which conflicted with her fiduciary duty as executor to conduct a fair and impartial defense to the will contest, (2) because the estate was of substantial value — the personal estate exceeding $600,000 — and Mrs. Kuhn lacked experience in handling securities and real estate, and, therefore, was incapable of managing the same, (3) in that Mrs. Kuhn caused herself to be awarded an excessive widow's award in the sum of $37,500, and (4) because there are certain goods and chattels of the decedent for which Mrs. Kuhn had failed to account or have appraised.

The grounds for removal of an executor are set forth in section 276 of the Probate Act (Ill Rev Stats 1965, c 3, par 276) as follows:

"On the verified petition of any interested person or upon the court's own motion, the court may remove an executor, administrator, administrator to collect, guardian, conservator or conservator to collect for any of the following causes:

"(a) When the executor, administrator, administrator to collect, guardian, conservator or conservator to collect:

"(1) is acting under letters secured by false pretenses; or

"(2) is adjudged a person in need of mental treatment under the Mental Health Code or is adjudged an incompetent; or

"(3) is convicted of a felony; or

"(4) wastes or mismanages the estate; or

"(5) conducts himself in such a manner as to endanger his co-fiduciary or the surety on his bond; or

"(6) fails to give sufficient bond or security, counter security or a new bond, after being ordered ...


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