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In Re Estate of Palm

MARCH 22, 1973.

IN RE ESTATE OF TITUS PALM, INCOMPETENT — (ETHEL ANDERSON, EXECUTOR, PETITIONER-APPELLEE,

v.

HELEN SMITH, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

This action involved a petition for citation, pursuant to Section 183(1) of the Probate Act, brought by the Estate of Titus Palm, an incompetent, to recover certain property. (Ill. Rev. Stat. 1965, ch. 3, par. 183.) The estate sought to recover 231 shares of American Telephone and Telegraph Company common stock and dividend checks which it charged had been concealed, converted or embezzled by the respondents. After a jury trial, a verdict was returned against one of the respondents, Helen Smith. The trial court entered judgment on the verdict, ordering Smith to turn over to the petitioner the proceeds of the stock sold in the amount of $13,398.00 and the amount of three dividend checks converted in the sum of $602.20. Upon Smith's failure to turn over the proceeds, the court entered a rule to show cause against her. At the same time, the court, by virtue of a settlement received by petitioner from certain other respondents in return for covenants not to sue, reduced the judgment turn-over order against respondent Helen Smith to $6,063.89. Upon her continued refusal to turn over the proceeds, respondent was found guilty of wilful contempt, was committed to jail, and this appeal follows.

Originally, the action was brought by the conservator of the incompetent's estate. Upon his death, the executor was substituted as petitioner. One of the respondents, Gustav Anderson, also died. The court appointed an attorney as special administrator of Anderson's estate.

At a pre-trial conference, petitioner negotiated a settlement with certain respondents. Under its terms, the petitioner was authorized to execute a covenant not to sue and an agreement to dismiss the pending suit against the respondent, American Telephone and Telegraph Company, and against the third party respondent, First National Bank of Chicago, in return for the sum of $1,201.91 and 150 shares of common stock of American Telephone and Telegraph Company.

The appellant, Helen Smith, contends on appeal that: (1) a remark made by the special administrator during the course of the trial and in the presence of the jury was so prejudicial as to require reversal; (2) the trial court incorrectly calculated the amount of the reduction of the judgment order; (3) the trial court improperly found her guilty of contempt; and, (4) the court abused its discretion in awarding costs and fees to the petitioner and special administrator under Section 41 of the Civil Practice Act.

In the instant case, both sides have set forth divergent statements of facts in their briefs. Appellant, however, in compiling the record on appeal, has failed to file a Report of Proceedings. We therefore are unable to determine the facts elicited at trial.

The amended petition, briefly summarized, alleged that for a short time prior to his adjudication as an incompetent, Titus Palm was a boarder in a rooming house operated by Helen Smith, and that Gustav Anderson was also a boarder. The petition further alleged that some time after Palm left the boarding house, and subsequent to his adjudication as an incompetent, 231 shares of telephone stock were transferred into the name of Gustav Anderson. Petitioner also alleged that the transfer bore the purported signature of Palm, but that the signature was not genuine. The petition went on to charge that the certificates were subsequently delivered to Helen Smith and that the shares were sold through a person named William Richard. According to the petition all the proceeds were eventually delivered to Helen Smith. The petition also charged that Palm's signature was forged to certain dividend checks.

Appellant filed an answer in which, while denying each allegation of the petition, she denied that she received any proceeds of the stock. She also filed sworn answers to a request for admission of facts in which she denied each and every act in the chain of conduct leading to the forgery, transfer and sale of stock, and the negotiation of the dividend checks. Appellant now concedes that she did in fact receive the stock proceeds, but maintains that they were received innocently.

• 1 Appellant, in her first contention before this court, claims that a remark by the special administrator characterizing her as a "thief" was so improper and prejudicial as to require a reversal of the trial court. However, a determination of this claim would require a review of an issue of fact which review is precluded by appellant's failure to file a Report of Proceedings. Since all reasonable presumptions favor the action of the trial court, the burden is on the appellant to overcome such presumptions by affirmatively showing the errors charged. (Husted v. Thompson-Hayward Chemical Co., 62 Ill. App.2d 287, 210 N.E.2d 614.) The absence of a Report of Proceedings makes it impossible to search for facts which might support appellant's argument.

• 2 We next consider appellant's contention that she was not given full credit for the money and stock received by the petitioner from other respondents in return for the covenant not to sue. Petitioner had received 150 shares of telephone stock and $1,201.91 in return for that covenant. As a result, the judge reduced the judgment order against the appellant to $6,063.89, setting the value of each share of stock at $50.25. In setting that value, the trial court found that the stock in question had declined in value after the time of the conversion in 1967. The judge concluded that the decline in stock value should be borne by the respondent rather than by the estate. Appellant, however, maintains that the jury determined the total value of the stock proceeds as $13,398.00, and that the court therefore was compelled to accept that value in reducing the judgment. In our view, the trial judge correctly decided that the decline in the value of the stock after the conversion should be charged against appellant. The estate was not obtaining a double recovery. The value of the stock was easily ascertained, and the court did not abuse its discretion in fixing the amount of the judgment.

• 3, 4 Appellant has also urged that the trial court improperly found her guilty of contempt, and wrongfully committed her to jail. However, in this court, appellant apparently does not seriously contest appellee's position that the issue is moot since appellant was released from jail by operation of law. Moreover, where the court has determined that a person has wrongfully converted funds to her own use which belong to an incompetent, the court may enforce its judgment by execution or by proceedings in contempt. (Keshner v. Keshner, 376 Ill. 354, 33 N.E.2d 877.) And, in a case where a trial court had committed a respondent-appellant to jail for six months or until he complied with an order requiring the payment of money wrongfully converted, this court held that there was no duty on the conservator to prove that respondent was financially able to comply with the order to return the funds. (In re Estate of Porter, 43 Ill. App.2d 416, 193 N.E.2d 617.) In the instant case, commitment of appellant to jail for failure to return the stock proceeds which she wrongfully converted was not an abuse of the court's discretion.

We consider finally the propriety of the trial court's award of costs and attorneys' fees to both petitioner and the special administrator under Section 41 of the Civil Practice Act. At the conclusion of the jury trial, the petitioner and special administrator requested such an award. The trial court granted appellant's motion for a bill of particulars; a bill of particulars was furnished; and the court subsequently denied appellant's motion for a more detailed bill of particulars. After a hearing, the court awarded costs to the petitioner in the amount of $3,298.77, fees to petitioner's counsel in the amount of $8,000, and fees to the special administrator in the amount of $3,000.

• 5 Section 41 of the Civil Practice Act gives a party the right to recover reasonable expenses and attorneys' fees from an offending party which fees and expenses were incurred by reason of the untrue pleadings, made without reasonable cause and not in good faith, filed by the offending party. The allowance of counsel fees and expenses under Section 41 is an attempt to penalize any litigant who pleads false matter and thereby puts an undue burden on an opponent to expend money in order for his attorney to disprove such pleadings. Lipscomb v. Coppage, 44 Ill. App.2d 430, 197 N.E.2d 48.

• 6 We believe that the instant case is an appropriate one for the award of costs and attorneys' fees under Section 41. Appellant's pleadings, particularly her answer to the amended petition and her answers to the request for facts, were untrue. Since she subsequently admitted receiving the proceeds of the stock sale, it would be inconceivable that her pleadings were properly made or that they were made in good faith. ...


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