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In Re Estate of Moses

JUNE 15, 1973.

IN RE ESTATE OF ELIJAH MOSES, DECEASED — (JOHN BURTON, PETITIONER-APPELLANT, CROSS-APPELLEE,

v.

FRANK MOSES, RESPONDENT-APPELLEE, CROSS-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ALVIN J. KVISTAD et al., Judges, presiding.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal and cross appeal from portions of an order entered on August 26, 1971, in probate proceedings.

Elijah Moses died in 1952 and his will was admitted to probate in 1953. It provided, inter alia, as follows:

"All my real and personal property to my wife, SALLY to have and hold for her natural life. EXCEPT-That my son FRANK, shall have one room in my house at 1906 Asbury Avenue as his home during the life time of my wife, SALLY. And that my son, FRANK, shall receive the rents from the WEST room in the basement of said house beginning July 15, 1955.

THIRD-At the death of my wife, SALLY all my real property shall vest in my son, FRANK: PROVIDED That he has lawful issue. If he does not then he shall have the said realty for his natural life only.

FOURTH-If my son FRANK dies without issue all my real property shall vest in my nearest blood relative and the nearest blood relative of my deceased wife, LOUISE BURTON MOSES. One-half share to each of our respective heirs."

In 1954 Frank Moses, the son of Elijah by a prior marriage, murdered Sally, his stepmother, for which he was convicted in 1955 and served thirteen years of his sentence.

John Burton, the son of Sally by a prior marriage, was the executor of Elijah's estate and after Sally's death was the administrator of her estate. In 1958 an inventory was approved in Elijah's estate listing his home as the sole asset. In 1959, after finding that all interested parties were properly notified, including the heirs of Elijah and Louise Burton Moses, the court ordered the sale of the home to meet expenses and costs of administration. The net proceeds of the sale amounting to $10,448 were the sole assets of Elijah's estate.

Among the orders entered, the following have particular significance:

Order of July 23, 1962 — The court denied a petition of Burton, as executor, to (a) extinguish the interest of Frank Moses because he had murdered Sally, and (b) to ascertain the value of Sally's life interest at the time of her death. The court also ordered the executor to file within 30 days a petition for distribution requesting the court for construction of the will at the time of Sally's death.

Order of June 24, 1968 — The court entered an order sustaining or denying each of the 19 objections filed by Frank Moses to a final account, which included a proposed final distribution of specific amounts to (1) the estate of Sally Moses for the value of her life interest, (2) Frank Moses for the value of his life interest, and (3) the Clerk of the Probate Court for the undetermined remainder.

In objection 18, which was sustained, Moses contended that any claim by Sally's estate was res judicata because the court had, in its order of July 23, 1962, denied a petition to determine the value of Sally's life estate at the time of her death and to extinguish the interest of Frank Moses. In objection 19, which was also sustained, he disputed any distribution to the undetermined remainder maintaining that under the proper construction of the will that he (Frank Moses) was entitled to the entire balance. In his reply to objection 18 the executor contended that because Frank Moses murdered Sally, the amount he receives should be subject to the value of Sally's life estate at the time of her death and in his reply to objection 19 he challenged Frank Moses' claim to the remainder because he did not have lawful issue and the executor again raised the question of the proper construction of the will.

The court also sustained Frank Moses' objection 8 in which he asked for interest under Section 308 of the Probate Act and the executor was ordered to be charged 10% per annum from August 1, 1959, on the proceeds from the sale of the home.

The executor was also ordered to prepare and submit to the court a corrected final accounting within 10 days.

Order of January 24, 1969 — On its own motion the court entered an order removing Burton as executor of Elijah Moses' estate and appointing James L. O'Keefe, the public administrator, to act.

Order of May 5, 1969 — The court ruled on a petition of Burton and in its order denied the following requests:

1. to construe the will,

2. to vacate the order removing him as executor,

3. to vacate or modify the order of June 24, 1968, and

4. to modify the prior orders to provide for immediate appeal.

No specific findings were made and no reasons were given for the denial of any request.

The court also ordered Burton to file within 20 days an amended final account pursuant to the order of June 24, 1968.

Order of November 18, 1969 — The court ruled on a petition filed by Burton to vacate the order of June 24, 1968. It was supported by a memorandum of law which included a reference to a hearing on July 28, 1969 concerning a motion of Burton for instructions as to the distribution of funds held by him and accounted for in an amended final account filed on May 26, 1969. It appears from the memorandum that at the hearing on July 28, 1969, there was a suggestion that the motion for instructions be considered a petition under section 72 of the Civil Practice Act to vacate the order of June 24, 1968. It was indicated that the court permitted Burton to file a section 72 petition. However, if one was filed, it is not in the record nor have we found any order concerning a ruling on any such petition.

Moses moved to strike the petition to vacate because (a) Burton was removed as executor and, being neither an heir nor a creditor, he had no right to present the motion and (b) that the June 24, 1968 order was final and ...


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