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In Re Estate of Shlensky





APPEAL from the Circuit Court of Cook County; the Hon. BERNARD POLIKOFF, Judge, presiding.


Rehearing denied June 23, 1977.

On July 14, 1975, the trial court found respondent, Harold Shlensky, in contempt of court for his wilful failure to comply with an order directing him, inter alia, to render a statement of account and to turn over all assets of the estate of Harry Shlensky. Respondent was sentenced to jail for six months but could be released sooner upon his compliance with the order.

On appeal, respondent contends that the contempt order cannot stand because: (1) the contempt with which he was charged was both criminal and indirect in nature and required procedural due process safeguards which he was not afforded; and (2) he was excused, as a matter of law, from complying with the court's order because of impossibility of performance.

We disagree with respondent's contentions and affirm the trial court.

The record discloses that on February 21, 1969, letters testamentary were issued to respondent, the brother of the decedent. Approximately 2 1/2 years later, respondent, as executor of the estate, filed his first current account. On November 3, 1972, Esther Shlensky, the widow of the decedent, filed objections, alleging that respondent was guilty of fraud and mismanagement in connection with his executorship. Among other things, the widow charged respondent with failing to produce vouchers relating to certain expenditures of estate funds, to account for various estate assets, to pay taxes, to repay a personal debt owed by respondent to the decedent, withdrawing from the estate excessive and unauthorized charges for executor and estate management services, and misappropriating estate funds for personal use.

Thereafter, on November 27, 1972, the widow filed a petition seeking to stay respondent's authority to disburse other estate assets, to direct respondent to account for and return estate assets and to compel respondent to repay the unauthorized executor and management fees. On December 15, 1972, respondent filed his answer to the petition denying any wrongdoing on his part. He disclosed that he had hired an accountant to determine his indebtedness, if any, to the estate. While admitting that loans had been made to him as executor, respondent denied that the loans were personal in nature and contended that all but $1,797.20 of the loans, which totaled $128,524.74, had been repaid.

On May 17, 1973, pursuant to petition, an order was entered requiring respondent, inter alia, to account for "all funds and other assets of the estate borrowed or otherwise taken or appropriated by him for use by him or any member of his immediate family * * *." The order also mandated an accounting of the executor and management fees received by respondent. On the same date, the widow filed a supplemental petition, again reciting many of the allegations of fraud and concealment and asserting that the respondent as executor continued to misappropriate funds, that he had forfeited his right to fees, that he had used excessive fees as a ruse to gain money to repay sums he owed the estate and that he had wrongfully transferred estate money to his wife and son.

On May 30, 1973, respondent was ordered removed as executor for "failure to present a verified account and close the estate."

On July 11, 1973, the widow petitioned the court to find respondent in contempt of court and to sanction him for his failure to comply with the order of May 17, 1973. In response to this petition, the respondent filed a document setting forth data regarding certain stock purchases, stock sales and receipts and disbursements of certain funds.

On July 10, 1973, the widow presented a motion for discovery to compel respondent to turn over certain books and records for inspection and copying. After a hearing, respondent was directed to make the various books and records available by July 19, 1973. Respondent failed to comply fully with this discovery order and five subsequent orders to produce.

After respondent's failure to comply with these orders, the widow filed another petition on November 20, 1974, seeking the entry of a rule directed to respondent to show cause why he should not be held in contempt of court and sanctioned for his failure to comply with the orders of the court.

On February 28, 1975, the court appointed Samuel J. Betar as administrator de bonis non with the will annexed of the estate. On March 13, 1975, Betar filed his petition alleging that the court had directed the respondent to turn over all the assets of the estate to Betar and to file a final account. The petition further alleged that no assets had been turned over by the respondent nor had a final account been filed. Lastly, the petition set forth that the estate inventory filed on December 3, 1969, listed assets totaling some $650,000. The petition requested the court, pursuant to section 300 of the Illinois Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 300), to state an account on behalf of respondent as the previously removed executor.

By order of March 21, 1975, the court granted the relief sought by Betar in his petition. *fn1 Further, the court ordered respondent to turn over to Betar, by April 10, 1975, all inventory assets and other items of estate property or their market value along with a statement of account. All interest, dividends and other increments also were to be furnished by ...

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