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In Re Estate of Minsky

OPINION FILED APRIL 25, 1978.

IN RE ESTATE OF CHARLES L. MINSKY, DECEASED. — (STANLEY W. MINSKY, EX'R OF THE ESTATE OF CHARLES L. MINSKY, ET AL., APPELLANTS,

v.

MARGARET MINSKY, ADM'R OF THE ESTATE OF CHARLES L. MINSKY, APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT A. SWEENEY, Judge, presiding.

MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:

Stanley W. Minsky, as executor of the estate of Charles L. Minsky, and Jack R. Davis, attorney for the executor, appeal from an order of the circuit court of Cook County which sustained objections to the executor's first and final report and account, inventory, amended first and final report and account and which denied the executor's petition for executor's fees and attorney's fees. They also appeal from the denial of the executor's motion to vacate the said order.

Following the death of Charles Minsky on December 31, 1974, his widow Margaret opened an estate and was appointed administrator of the estate on January 10, 1975. His sole heirs were Margaret, his daughter Christine, and his daughter Karen Rosenthal.

On January 29, 1975, Stanley Minsky filed a document purporting to be the last will and testament of Charles Minsky and subsequently filed a petition for probate of the will and for letters testamentary. The will provided that Stanley Minsky, Charles' brother, and Betty Pryble, Charles' sister, receive all of his estate. On March 7, 1975, the will was admitted to probate and Stanley Minsky was appointed executor of the estate. Letters of administration issued to Margaret Minsky were subsequently dismissed.

On April 2, 1975, Margaret Minsky and her two daughters filed a petition to vacate the order admitting the will of Charles Minsky to probate and on May 21, 1975, following a contested hearing, an associate judge vacated the order admitting the will, cancelled the letters of Stanley Minsky, appointed Margaret Minsky administrator of the estate, and ordered Stanley Minsky to file a final account. An appeal followed. This court held that the finding that the will had been revoked by the testator was not contrary to the manifest weight of the evidence but because a question existed as to whether Stanley Minsky had an adequate opportunity to present witnesses, justice required that the judgment declaring the will revoked be vacated and that the cause be remanded to the trial court for further proceedings (In re Estate of Minsky (1st Dist. 1977), 46 Ill. App.3d 394, 360 N.E.2d 1317, appeal denied (1977), 66 Ill.2d 626).

Stanley Minsky filed his first and final report and account on July 14, 1975. This final account listed certain expenses incurred in resisting Margaret Minsky's motion to vacate the order admitting the will to probate and it also listed as disbursements an executor's fee of $1,500 to Stanley Minsky and an attorney's fee of $3,000 to attorney Jack Davis.

Margaret Minsky, as administrator, filed objections to this final account. Margaret Minsky also filed objections to Stanley Minsky's inventory and amended first and final report and account.

Extensive hearings were held on the objections and on June 11, 1976, an associate judge of the probate court entered an order which held that disbursements for court reporters' fees, expended in connection with the litigation over the validity of the will, were not proper disbursements. The order recited that Stanley Minsky had been guilty of bad faith, gross misconduct, carelessness and negligence in the exercise of his duties. The order also recited that the $1,500 executor's fee paid to Stanley Minsky and the $3,000 attorney's fee paid to Jack Davis were to be returned to the estate as not being authorized by any order of court. The order also denied the separate petition for executor's fees and attorney's fees filed by Stanley Minsky.

This appeal is from the order entered June 11, 1976, and the subsequent denial of the motion to vacate that order. The appellants contend: (1) that the trial judge had no authority to enter a final order denying the petition for fees; rather, that he only had authority to make a recommendation to the presiding judge of the probate division of the circuit court of Cook County regarding the petition for fees; (2) that the trial judge erred in refusing to award executors' fees; (3) that the trial judge erred in refusing to award attorney's fees; and (4) that the trial judge erred in finding that the disbursements for court reporters' fees were improper.

Appellants' first contention is without merit. On December 8, 1975, the presiding judge of the probate division of the circuit court of Cook County entered an order granting Stanley Minsky leave to file his inventory and amended first and final report and account, and referred the inventory and amended first and final report and account to an associate judge for hearing. The presiding judge further ordered that the petition for executor's fees and attorney's fees was referred to the associate judge for his recommendation to be made to the presiding judge for final court order.

• 1, 2 Supreme Court Rule 21(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 21(b)), provides as follows: "The chief judge of each circuit may enter general orders in the exercise of his general administrative authority, including orders providing for assignment of judges, * * *." General Order 10 of the circuit court of Cook County, so far as pertinent, provides as follows:

"MATTERS ASSIGNABLE TO ASSOCIATE JUDGES

General Order No. 10 (revised) — Dated July 1, 1971.

The Presiding Judge of each Division or District of the Circuit Court of Cook County may assign to Associate Judges within his Division or District, severally or by designation of office, by class or category of case, or in specific instances, any matter * * *. (Amended and effective July 1, 1971, this order supercedes ...


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