APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN E. NOVOSELSKY, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
This appeal is taken from that part of an order directing appellants as co-executors under the will of Benjamin Kulp, deceased, (hereinafter "co-executors") to pay without right of reimbursement from Harold Gould (hereinafter "Gould") that portion of accrued real estate taxes upon certain real property devised to him attributable to the period of time during which either the decedent or his co-executors were in possession.
For the reasons hereinafter stated we reverse and remand with directions.
Benjamin Kulp died a resident of Cook County, Illinois on May 27, 1978. His will, dated October 7, 1975, was admitted to probate and appellants herein were appointed co-executors on June 26, 1978. After decedent devised all of his right, title and interest in the residential real estate located at 814 Franklin Avenue, River Forest, Illinois, to his nephew, Gould, if living at his death, in article 5 of the will he directed:
"* * * that the executors shall provide for payment out of the residue of my probate estate of the following without seeking reimbursement from or charging any person therefor:
(a) My last illness and funeral expenses and the costs of my burial.
(b) All indebtedness owned by me at the time of my death.
(c) All expenses in connection with the administration of my estate.
(d) All valid inheritance, estate, transfer and succession taxes, including interest and penalties thereon, which may become payable by reason of my death * * *."
No specific reference is made in the will regarding payment of real estate taxes.
On July 17, 1978, pursuant to section 20-1(c) of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 20-1(c)), the circuit court entered an order granting possession of the subject real estate to Gould, who thereafter petitioned the court, inter alia, for entry of an order directing co-executors to pay 1977 and 1978 real estate taxes on the subject property out of the residue of decedent's estate. Co-executors represent said property as having a date-of-death appraised value of $148,500 which passed to Gould unencumbered save for the second installment of 1977 and the entire 1978 real estate taxes, amounting to approximately $7,500.
The order from which this appeal is taken directs, inter alia, that co-executors pay as the estate's obligation and without right of reimbursement from Gould the second installment of 1977 real estate taxes due and the 1978 real estate taxes from January 1 to July 17 of that year, when Gould was placed in possession of the subject property. Real estate taxes for July 17 to December 31 of 1978 and thereafter were held to be Gould's personal obligation. The court acknowledged that it was effectively pro-rating the 1978 taxes based upon the time Gould was granted possession.
1 An ower of real property on January 1 of a given year is personally liable for the real estate taxes for that year (Ill. Rev. Stat. 1977, ch. 120, par. 508a), said taxes becoming a prior and first lien upon the property in question as of the January 1 date (Ill. Rev. Stat. 1977, ch. 120, par. 697). The parties agree that since decedent was owner of the subject property on January 1 of both 1977 and 1978, he was personally liable for the real estate taxes for both years and that when he died, said liability became a debt of his estate. (In re Application of County Collector (1966), 72 Ill. App.2d 272, 218 N.E.2d 244; In re Estate of Carlson (1952), 348 Ill. App. 464, 109 N.E.2d 461.) They further agree that the question for our consideration is whether the deceased under the terms of his will expressly provided for payment of the aforesaid ...