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In Re Estate of Georgen

DECEMBER 28, 1971.

IN RE ESTATE OF ALICE PRYCE GEORGEN, DECEASED.


APPEAL from the Circuit Court of Rock Island County; the Hon. GEORGE O. HEBEL, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY, DELIVERED THE OPINION OF THE COURT:

Rock Island Bank and Trust Company, Administrator with Will Annexed of the Estate of Alice Pryce Georgen, deceased (in Illinois Ancillary Proceedings), appeals from an order of the Circuit Court of Rock Island County entered on February 26, 1971, denying the petition of such ancillary administrator to charge certain real estate with the expenses of administration, State Inheritance taxes, and Federal Estate taxes, etc. The testamentary trustee under the will of the decedent, Alice Pryce Georgen, the First National Bank of Rock Island, defended as appellee.

Alice Pryce Georgen died a resident of Sarasota, Florida, on December 1, 1965, leaving her surviving husband, Wendell Lattner Georgen as her only heir at law. Decedent never had any natural children nor had she adopted any children during her lifetime. At the time of her death she left a last will and testament dated October 25, 1965, and a codicil thereto dated November 10, 1965. The will and codicil were admitted to probate in Florida and Palmer First National Bank and Trust Company of Sarasota, Florida, was appointed Executor of her Estate in Florida. In view of the fact that decedent had died owning an undivided one-third (1/3) interest as a tenant in common in certain Rock Island County farm real estate in Illinois (herein referred to as "The John R. Pryce Farms"), ancillary probate proceedings were instituted in the Circuit Court of Rock Island County. The will and codicil executed by the decedent, and admitted to probate in Florida, were also admitted to probate in the Illinois proceedings and plaintiff in this action was appointed Administrator with Will Annexed.

In decedent's will executed on October 25, 1965, she provided that the debts, expenses of decedent's last illness, funeral expenses, expenses of administration, inheritance taxes and estate taxes should be paid from and charged against the principal of her residuary. Pertinent articles of the will were Articles III and IV which provided as follows:

"ARTICLE III. I give and bequeath all of my feminine rings, feminine jewelry, furs and feminine clothing, to my niece, Jane Criswell, if she survives me. I give and bequeath all of my personal and household effects such as automobiles, furniture, furnishings, silver, dishes, books and pictures, (including policies of insurance, if feasible) to my beloved husband, Wendell Lattner Georgen, if he survives me by thirty (30) days.

ARTICLE IV. I give, devise and bequeath all the rest, residue and remainder of my estate, being all personal, real and mixed property, wheresoever situated, in which I have any interest at the time of my death, including any property over which I have any power of appointment, to my hereinafter named Trustee * * *."

The trust established by the will directed the trustee to pay the trust income to the decedent's husband during his life, with various gifts over to decedent's blood relatives. In the will, the trustee was also given a discretionary right to invade the principal of the trust for the benefit of decedent's husband should that be necessary for the husband's reasonable comfort and support.

In the codicil executed by decedent on November 10, 1965, she changed her estate plan substantially. Under the codicil, Articles III and IV were amended to read (in relevant parts) as follows:

"ARTICLE III. (a) I give and bequeath all of my feminine rings, feminine jewelry, furs and feminine clothing, to my niece, Jane Criswell, if she survives me.

(b) I give, devise and bequeath all the rest of my personal property and all of my real estate, wheresoever situated, except any interest which I have at the date of my death in those three farms which are commonly known as `The John R. Pryce Farms' which are located in the County of Rock Island, in the State of Illinois, within about two (2) miles of the City of Moline Airport, to my beloved husband, Wendell Lattner Georgen, if he survives me by thirty (30) days.

ARTICLE IV. I give, devise and bequeath all the rest, residue and remainder of my estate, being all personal, real and mixed property, wheresoever situated, especially including herein any interest which I have at the date of my death in those three farms which are commonly known as `The John R. Pryce Farms' which are located in the County of Rock Island, in the State of Illinois, within about two (2) miles of the City of Moline Airport, including any property over which I have any power of appointment, to my hereinafter named Trustee * * *."

The codicil, it is noted, changed the testamentary trust provisions to prevent the trustee from invading the principal of the trust and specifically provided that the husband was not to have any power to invade the principal of the trust. The codicil also in an amendment to the will expressed an intention and request that the trustee retain any interest which decedent owned at the date of her death in The John R. Pryce Farms irrespective of any lack of diversification, risk or nonproductivity.

It appears from the record that the gross date of death value of decedent's interest in "The John R. Pryce Farms" was $180,323.66. Other properties which were subject to Florida probate were worth $48,141.49. Expenses and taxes which were in litigation in this action amounted to $38,652.40 which were paid or advanced by plaintiff and the Palmer First National Bank and Trust Company of Sarasota, Florida. The record also shows that certain portions of "The John R. Pryce Farms" were sold in condemnation proceedings and as a result of the sale the trustee now holds (in addition to the remaining portions of the real estate) cash and securities in the approximate value of $65,000.

Following a hearing in the trial court such court denied plaintiff's petition for reimbursement from the trustee. The trial court found that decedent intended to specifically devise her interest in "The John R. Pryce Farms" to her testamentary trustee, and that the residuary clause of her will was Article III (b) in the Codicil quoted above. As a result of such determination, the trial court found that the debts, taxes and costs of administration of the estate were ...


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