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In Re Estate of Hartman

OPINION FILED OCTOBER 31, 1978.

IN RE ESTATE OF DELBERT R. HARTMAN, DECEASED. — (ALICE GUALANDI, PETITIONER-APPELLANT,

v.

CITY NATIONAL BANK OF KANKAKEE ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Kankakee County; the Hon. EDWARD McINTIRE and JOHN F. MICHELA, Judges, presiding. MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Alice Gualandi appeals from an order of the Circuit Court of Kankakee County, in which City National Bank of Kankakee was appointed administrator of the estate of Delbert R. Hartman, deceased, on petition of Mary Hartman Thompson, who is a nonresident sister of decedent. Appeal is also taken from the denial by the same circuit court at the same time of the petition of Alice Gualandi, a resident sister of the decedent, Delbert R. Hartman, in which it was requested that Alice Gualandi be appointed administrator of that estate.

On appeal, three issues are presented for determination by this court, namely: (1) whether the circuit court had the power to appoint a nominee of a preferred class member to qualify as adminstrator in preference to a member of the preferred class; (2) whether there was evidence in the record to support the finding of the circuit court of conflicts of interest and hostility among the heirs, which would render Alice Gualandi unsuitable to be the administrator of the estate; (3) whether the circuit court had jurisdiction over all the interested parties involved in the estate of decedent in acting on the petition of Mary Hartman Thompson.

Delbert R. Hartman, a resident of Kankakee County, died intestate on September 3, 1977, and was survived by eight sisters and one brother as his heirs at law. Four of the sisters and a surviving brother of the decedent are residents of Illinois. The remaining four sisters are residents of other states. On September 9, 1977, Alice Gualandi of Wenona, Illinois, a sister of the decedent, filed a verified petition in the Kankakee County Circuit Court praying that letters of administration be issued to her as to the estate of Delbert Hartman. Three of the resident survivors (Donald Hartman, Rosalie Hartman and Ethel Tresp), all of Kankakee County, supported the petition in written and personal appearances.

On the day of the hearing, Mary Hartman Thompson of Seattle, Washington, a sister of the decedent Delbert R. Hartman, through her attorney, filed a petition praying that the City National Bank of Kankakee be appointed as administrator of the Delbert Hartman estate. The remaining four sisters, who had not supported the Gualandi petition, filed written appearances in support of the Thompson petition.

The only evidence received at the October 4, 1977, hearing was the testimony of Alice Gualandi and Donald Hartman. Gualandi testified that she was a sister of the decedent Delbert Hartman. She also testified that the estate of John Hartman, another deceased brother, had been probated in the Circuit Court of Kankakee County in 1965, and that Delbert Hartman, the decedent in the instant case, had been appointed as administrator of that estate. She also testified that the John Hartman estate was not yet closed at the time of the hearing. The testimony of Donald Hartman indicated that he was a brother of the deceased and that he wished to withdraw his support of the Thompson petition and to support the Gualandi petition instead.

At the close of the October 4, 1977, hearing, the trial court took the matter under advisement until October 26, 1977. On that date, the attorney for Mary Hartman Thompson presented the court with two affidavits and a case citation in support of the Thompson petition. The affidavits, sworn to by two of the sisters of the decedent, stated, among other things, that Gualandi in her interest is adverse to the five heirs who requested that the bank be appointed administrator; that Gualandi expressed hostility to two of the heirs; and that court records show that the estate of John Hartman, a deceased brother, who died in Kankakee County, is still open, and that there had been no accounting or distribution in that estate, which was being administered by Delbert Hartman, the decedent in the instant case. There was also a statement that Delbert Hartman was represented by an attorney in his home community and that petitioner Alice Gualandi, who is represented in the instant case by the same attorney, knows that attorney is the attorney for the John Hartman estate and that there is a conflict of interest for such attorney to act for the Delbert Hartman estate while remaining as attorney for the John Hartman estate.

After the trial court had received the affidavits and the case citation, it is stated that the trial court took a 10-minute recess to review them, and then announced the court's decision appointing City National Bank of Kankakee as administrator. In the order of the trial court appointing the bank as administrator, the trial court stated, among other things, that it had considered the affidavits of the two heirs and found a conflict of interest between the heirs, as well as hostility, suspicion, and jealousy existing among the heirs.

Section 9-2 of the Illinois Probate Act of 1975 confers upon the circuit court the power, upon petition therefor, to issue letters of administration in accordance with the preferences specified in section 9-3 of the Probate Act of 1975. (Ill. Rev. Stat. 1977, ch. 110 1/2, pars. 9-2 and 9-3.) In the instant case, the class with the highest applicable preference is listed in section 9-3 as:

"(f) The brothers and sisters [of the decedent] or any person nominated by them." (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 9-3.)

The preferences specified in the preceding statutes, replaced by section 9-3, have been interpreted by the courts of this State, to give a member of a class preference over a nominee of a class member. In the case of Justice v. Wilkins (1911), 251 Ill. 13, 95 N.E. 1025, the supreme court of this State construed section 18 of the Administration Act then existing, where preferences were listed, and where, after each preference, the words added were "`or any competent person nominated by them,' or by him or her, as the case may be." (See Justice v. Wilkins (1911), 251 Ill. 13, 15.) The supreme court at that time stated:

"* * * the statute is mandatory to appoint one or more of the next of kin residing in the State, who were otherwise qualified, unless they waived their rights. [Citations.] When any one heir of a class waives the right and nominates another, the one so nominated is not to stand in place of the other, with equal rights to administer as against the other heirs of the class, unless the person nominating is the only heir of that class." Justice v. Wilkins (1911), 251 Ill. 13, 16.

In In re Estate of Marco (2d Dist. 1942), 314 Ill. App. 560, 41 N.E.2d 783, the appellate court held the newly enacted Probate Act of 1939 did not change the rule of Justice v. Wilkins, minor changes in the new act notwithstanding. The court said in that case:

"* * * a stranger to the class * * * does not stand in the place of the one nominating him." In re Estate of Marco (2d Dist. 1942), 314 Ill. App. 560, 565.

• 1 The policy expressed in Justice v. Wilkins and In re Estate of Marco was adhered to in this court in In re Estate of Smith (1st Dist. 1963), 41 Ill. App.2d ...


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