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In Re Estate of Fornof

JUNE 12, 1968.

IN THE MATTER OF THE ESTATE OF HATTIEBELLE FORNOF, DECEASED. ANNABELLE WIMPLE KITCHENS, ET AL., APPELLANTS,

v.

RAYMOND C. WIMPLE, APPELLEE, AND BERTHA WATERS, INTERVENING APPELLEE, AND ANNETTA STURGELL, NELLE JOHNSON, CLYDE STURGELL, SR., AND THE CITIZENS NATIONAL BANK, APPELLEES.



Appeal from the Circuit Court of Douglas County; the Hon. HARRY L. PATE, Judge, presiding. Affirmed.

TRAPP, J.

One Clyde Sturgell and The Citizens National Bank of Decatur were appointed Coadministrators with the Will Annexed in the estate of Hattiebelle Fornof, following an amendment of the original petition which only prayed the appointment of Sturgell. The court denied a cross-petition objecting to the appointment of the said Sturgell and nominating the Bank as such administrator. Certain of the cross-petitioners appeal from such order.

Testator's will was admitted to probate on December 23, 1966. She devised and bequeathed her estate of 1,200 acres of farmland and $500,000 in personalty equally between the respective heirs, per stirpes, of her half-brothers, William Wimple and Silas Wimple. All counsel agree that the estate devolves as it would under the statute of descent.

Testator's nominee as executor filed his written refusal to qualify on November 28th. Raymond Wimple, an heir of William Wimple, filed a petition for the probate of decedent's will, nominating Sturgell as Administrator with the Will Annexed. Entries of appearance to such petition were filed by the heirs of William Wimple and by Raymond Wimple and Clarence Wimple, heirs of Silas Wimple.

Appellants, as cross-petitioners, joined in the prayer for the probate of the will, but objected to the appointment of Sturgell as Administrator with the Will Annexed, and prayed the appointment of the Milliken Trust Company or The Citizens National Bank of Decatur, as such administrator. The appearances by Raymond Wimple and Clarence Wimple to the original petition were withdrawn, and they entered their appearances to the cross-petition.

As grounds for the objection of the appointment of Sturgell, the cross-petitioners alleged that in view of the extent and nature of the estate, it could be best administered and the beneficiaries "be more fully protected" by the appointment of a corporate administrator. The heirs of William Wimple reside in Illinois, while the heirs of Silas Wimple are nonresidents. The nominee Sturgell is the husband of Annetta, an heir of William Wimple.

At a hearing on December 23, 1966, the will was admitted to probate. The court then heard evidence concerning the appointment of an administrator. Cross-petitioners examined Sturgell as under section 60, interrogating him as to his age, health and physical condition, his handling of his own farmland, as well as the farmland of others. Such examination developed that Sturgell had managed testator's farmland until the appointment of a conservator of her estate, The Citizens National Bank, some 18 months prior to her death. Sturgell also served as conservator of the estate of Bertha Waters, an heir of William Wimple.

Cross-petitioners also called as a witness the attorney who had drawn testator's will in 1964. The latter testified as to a conversation wherein the testator had stated that the family was scattered and that she did not want a member of the family to serve as executor. Objection to such testimony was made on the ground that the will was already admitted to probate. The court agreed, but permitted such testimony "subject to answer."

Sturgell testified that after the date of the execution of the will he had dealt with the farm tenants and collected the data for the preparation of decedent's income tax return.

Further examination disclosed that Sturgell's wife was a plaintiff in a suit for partition of the Fornof land, but that as conservator for Bertha Waters, Sturgell had not joined in, or discussed joining as plaintiff in that proceeding.

The trial court, having ascertained that all parties had rested as to matters of evidence, the attorneys for the cross-petitioners addressed the court urging as grounds for appointing a corporate administrator the complexity of the estate, the economy of the administration in terms of bond costs and accounting services, and that the cross-petitioners wanted fair play. Counsel submitted the corporate qualifications of The Citizens National Bank and of the Milliken Trust Company to serve as such administrator, noting that the former had served well as conservator of the estate of the deceased. The court took the matter of appointment under advisement until December 30th.

Upon that date counsel again appeared and the court showed on file a telegram from the original petitioner, Raymond Wimple, dated December 28th, at Sarasota, Florida, asking to amend the original petition to include The Citizens National Bank as coadministrator. Counsel for petitioner then moved to amend instanter the petition to nominate The Citizens National Bank as an administrator. Cross-petitioners objected upon the ground that they had not consulted with their clients.

The court then asked counsel if anything further was to be offered upon either the law or the evidence. Nothing was suggested. Counsel for cross-petitioners again addressed the court urging that there would be unwarranted cost to the estate, that the pending partition suit showed hostility between the groups of heirs, and that under the amended petition one group of heirs would not be represented.

The court then stated that there was nothing in the record to disqualify Sturgell, that he had served well in other appointments, and that his appointment had been requested by one group of beneficiaries. He further stated that he was aware that Sturgell had cooperated with and assisted The Citizens National Bank in the handling of real estate during ...


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