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In Re Estate of Knutson

OPINION FILED MAY 5, 1980.

IN RE ESTATE OF EMIL J. KNUTSON. — (EMIL J. KNUTSON, PETITIONER-APPELLEE,

v.

JOHN BETTS, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. FLOOD, Judge, presiding.

MR. PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Pursuant to petition of Emil Knutson for the assessment of attorney's fees and costs against the respondent John Betts, the circuit court of La Salle County entered judgment in favor of the petitioner and against the respondent for $2,058.75 for attorney's fees and $421.55 for costs for a total of $2,580.30. The respondent, John Betts, has appealed.

On October 6, 1978, Attorney John Betts filed a verified petition for conservatorship pursuant to the Probate Act, alleging that Emil Knutson was incompetent. Additionally the petition recited:

"2. That to the best of the Petitioner's knowledge there are no living relatives of the alleged incompetent in the State of Illinois.

4. * * * to the best of the Petitioner's knowledge, the incompetent owns no real estate in LaSalle County or Illinois."

Betts was represented by John Hardin III. In addition to the petition a physician's affidavit was filed by Betts that the alleged incompetent Knutson had been examined on October 2, 1978, by Terrance W. Love, an osteopathic physician. The affidavit was prepared by attorney Betts and notarized by his secretary. An immediate hearing was requested and the court ordered (ex parte) that the hearing be held on October 11, 1978, and also ordered notice thereof to the alleged incompetent.

On October 11, 1978, a hearing was held in the circuit court of La Salle County, at which time Betts, Hardin and Knutson were present. Stephen West was appointed guardian ad litem on the morning of October 11, but he stood mute during the proceeding. No witnesses were sworn, but Betts and Hardin made statements to the court and Knutson responded to questions by the court and by Betts and Hardin inquiring into his affairs. Knutson was 79 years of age and lived in a trailer on premises which he had homesteaded. During the course of the questioning Knutson indicated that he was able to take care of himself and that the lawyers were trying to take the property away from him and squander his money. Knutson also denied being examined by Dr. Love or any other doctor, but Betts explained this to the trial court saying that he, Betts, had taken the doctor to Knutson's premises but had not told Knutson that the person with him was a doctor.

On October 11, 1978, Betts filed and brought to the attention of the court a report of the Health Board of Manilus Township which recited that on October 6, 1978, at 10 p.m. a hearing was held on the complaint of John Betts representing the First National Bank of Ottawa against Emil Knutson. On this appeal respondent Betts has filed an affidavit, the purport of which is to claim that the report is in error in reciting that the hearing was held at 10 p.m. on October 6 and that, on the contrary, the hearing was held on the morning of October 6. Although we deem it inappropriate to contradict the record by an affidavit filed at this late date, the report primarily deals with the condition of the premises. It also indicates that even in advance of the hearing Betts intended to commence conservatorship proceedings, and the report concludes with the observation that Knutson could use some supervision.

The court granted the prayer of the petition, declaring Knutson to be incompetent and appointed James Hardin as conservator at the request of Betts. On the same day Hardin filed his oath and a petition for writ of assistance directing the removal of Knutson from his trailer to a sheltered care home in Streator, Illinois. The writ was granted the same day, and Knutson was forcibly removed to the sheltered care home in Streator. Less than 24 hours after Knutson had been declared incompetent and removed from his home, his residence burned to the ground. The cause of the fire was unknown.

On October 16, 1978, a petition to remove conservator was filed on behalf of Emil Knutson by his guardian ad litem and attorney alleging that the proceeding was fraudulent and the result of questionable conduct. The judge who had made the determination on October 11 recused himself and, after a change of venue applied for and granted on October 19, hearing on this petition was ultimately held on December 1. On October 19 Hardin requested leave to resign as conservator. This request was granted and the public conservator of La Salle County was substituted in his stead.

On December 1, a hearing was held on an amended petition to vacate the adjudication of incompetency filed by the attorney for Knutson. Dr. Terrance Love was called to testify regarding his original physician's affidavit. He testified that he observed Knutson but did not testify about conducting any medical examination. Dr. Love testified that he had first seen the affidavit when it was presented to him by attorney Betts one or two days after he had observed Knutson. Love's testimony at the hearing was contrary to the statements made in the affidavit.

At the time of the second hearing, Knutson was 80 years of age. He recalled that attorney Betts and Dr. Love had in fact visited his residence, but that neither of them had left the automobile in which they arrived. He also testified that he had a niece in Chicago and two nieces and nephews in California, and that he had informed the respondent Betts of this fact in March or April 1978, long prior to the filing of the petition for conservatorship. He also recalled attorney Betts being involved in the purchase of his real estate, and that he had been assured by Betts that he would have the right to stay there as long as he lived.

After the hearing on October 11 the guardian ad litem learned that on March 29, 1978, the respondent, John Betts, purchased from Emil Knutson a 20-acre parcel of real estate located in rural La Salle County, Illinois, for his client, Lyle Weber. Attorney Betts prepared the quitclaim deed and notarized the signature of Knutson, and the property was subsequently deeded into a trust at the First National Bank of Ottawa, Illinois. The purchase price was $500 an acre, and the quitclaim deed prepared by Betts contained the following reservation:

"Right of the Grantor (Knutson) to retain use of the East one hundred fifty feet of the real estate listed above for his lifetime, or until his abandonment ...


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