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In Re Estate of Hubbard

OPINION FILED OCTOBER 26, 1977.

IN RE ESTATE OF ELMER C. HUBBARD, DECEASED. — (MARVIN BUHRMAN, ADM'R OF THE ESTATE OF GRACE HUBBARD, PETITIONER-APPELLEE,

v.

LORENE KILEY, EX'R OF THE ESTATE OF ELMER C. HUBBARD, ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PAGE, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Elmer C. Hubbard died testate on February 10, 1971, at his home at 544 South Broadway, Aurora, Illinois. He was 78 at the time of his death and left surviving as his only heirs-at-law his widow, Grace Hubbard, also 78, and three adult children by his first marriage, namely Lorene Kiley, Lloyd Hubbard, and Joyce Kreitz.

Subsequent to oral argument but prior to the filing of the opinion in this case, Mrs. Hubbard died. On September 28, 1977 we allowed the motion of the administrator of her estate to be substituted as the petitioner-appellee. Therefore, all references in the opinion to petitioner refer to both Mrs. Hubbard and her administrator.

Mr. Hubbard married his second wife, Grace, in 1956 when they were each approximately 63 years old. Upon her marriage to Mr. Hubbard, Grace Hubbard moved into the house at 544 South Broadway where the couple then resided until Mr. Hubbard's death in 1971. Mrs. Hubbard continued to live there until her death in 1977. The premises at 544 South Broadway consist of three apartments, one occupied by the Hubbards as their residence and two others which were rented out.

In 1960 Mr. Hubbard retained an attorney to draw his last will and testament. The will named Lorene Kiley as executrix. Mrs. Kiley testified that her father gave her a copy of the will.

Prior to his death in 1971, Mr. Hubbard suffered several strokes. During this period he requested his wife to secure his will from the safe deposit box and thereafter the will was kept in the house. Also at this time Mr. Hubbard told his wife that at his death she could remain in the house for as long as she lived.

On the morning of February 10, 1971, Mrs. Hubbard telephoned Lorene Kiley and told her of her father's critical condition. Mrs. Kiley came over immediately followed by a doctor who pronounced Mr. Hubbard dead. Mrs. Hubbard then turned over a bag of papers to Mrs. Kiley, among which she assumed was her husband's will.

Mrs. Kiley took the bag home, but did not examine it for several days. When she finally did examine the contents of the bag she discovered her father's will. She was uncertain what to do for several weeks and then finally decided to seek the advice of the attorney who had drawn the will for her father; he explained the will to Mrs. Kiley and advised her that there was nothing she needed to do at that time.

In 1975, Mrs. Hubbard contacted her step-daughter, Mrs. Kiley, to ask if she could have her one-third share of the house as she was aging and could no longer keep up the house. Mrs. Hubbard, since the death of her husband, had collected the rents from the apartments, paid the taxes and insurance thereon and looked after the maintenance and repairs of the premises. Now, however, she wished to take up residence at a retirement home. Mrs. Kiley refused Mrs. Hubbard's request.

Mrs. Hubbard then sought legal advice. Her attorney, upon ascertaining that Elmer Hubbard's will had not been filed, sent a letter to the attorney who had drawn the will requesting the filing of the will for probate. The will was filed and letters testamentary were issued to Mrs. Kiley. Within seven days of the admission of the will to probate Mrs. Hubbard renounced the will. She also requested a widow's award and reimbursement for the funeral expenses which she had paid. When no action was taken on her request she filed a petition to remove Mrs. Kiley as executrix. Mrs. Kiley filed an answer and a hearing was held. The order of the trial court removed Mrs. Kiley as executrix; allowed Mrs. Hubbard $5,000 as a widow's award; found she had a vested estate of homestead in the property at 544 South Broadway; allowed her claim for the funeral bill; and found her renunciation of the will valid. Mrs. Kiley appeals from this order.

We consider first the removal of Mrs. Kiley as executrix. Section 276 of the Probate Act, (Ill. Rev. Stat., 1973, ch. 3, par. 276), governs removal of executors and sets forth one or more grounds for revocation of letters testamentary. (In re Estate of Long (1971), 1 Ill. App.3d 372, 273 N.E.2d 160.) Section 276 provides:

"On the verified petition of any interested person, or upon the court's own motion, the court may remove an executor, administrator, administrator to collect, guardian, conservator or conservator to collect for any of the following causes:

(a) When the executor, administrator, administrator to collect, guardian, conservator or conservator to collect: * * *

(9) becomes incapable of or unsuitable for the discharge of his duties; * * *." Ill. Rev. ...


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