APPEAL from the Circuit Court of Cook County; the Hon. R.A.
SWEENEY, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from an order removing her as conservator of the estate of the incompetent, Sarafina Rumoro, for alleged improper conduct. The order further directed her to file a complete accounting and found that she was not entitled to compensation for the support and care of the incompetent. On appeal, plaintiff presents these issues that: (1) her removal as conservator was improper and contrary to the Probate Act (Ill. Rev. Stat. 1977, ch. 110 1/2, pars. 23-2, 23-2(a)); *fn1 (2) she is entitled to compensation for services rendered the incompetent; and (3) it is unjust and inequitable to compel her to account and provide receipts for the period prior to her appointment. We reverse and remand. The pertinent facts follow.
In June 1975, Sarafina Rumoro was discharged from the Cermak House Nursing Home as the staff could not handle or control her. At that time she was taken into and cared for in the home of her daughter, Minnie Amendola. On March 29, 1978, a court order declared Sarafina Rumoro an incompetent, denied the petition of Rosetta Leoni to be appointed as her conservator and appointed plaintiff as conservator of her estate and person. The court also ordered an inventory and an accounting of all assets of the incompetent acquired by plaintiff, including expenditures and expenses of the incompetent while in the physical custody of plaintiff.
Plaintiff filed the first accounting in September 1978. Expenditures from July 1975 to July 1978 totaled $39,335.81, unsubstantiated by receipts, vouchers or checks. Total assets over that same period totaled $49,897.93, leaving a cash balance of $10,413.87. Plaintiff filed an amendment to her accounting in April 1979 showing disbursements totaling $65,984.06, leaving a deficit of $16,086.13 and asking the other brothers and sisters to contribute to make up for the deficit. The increase in the total disbursements was due to a recalculation of the incompetent's care, maintenance, board and medical supplies and included the period from July 1975 up to March 1979.
Objections were filed by Rosetta to the account and a hearing followed in October 1978. Plaintiff testified that there was a meeting of all the brothers and sisters where it was agreed that she would take care of her mother and have complete control over all of her assets. This testimony was corroborated by both of her brothers, John and Joseph Rumoro. Plaintiff then testified that she withdrew $29,326.40 from an account in her and her mother's name at Bellwood Savings and Loan. She further stated that she paid $2,300 to her brother Joseph to help him with expenses after the death of his wife. There was an additional expenditure of over $5,000 for rugs, curtains, and bedding and $1,536 for plaster to repair damage done by her mother in her bedroom. She denied using her mother's money for the purchase of her new home.
Jean Bertone, director of admissions for the Cermak House, testified on an offer of proof that nursing services for the care of an incompetent would be valued at approximately $35 per day.
Rosetta testified she never attended a meeting where it was agreed that plaintiff would handle all of the assets of Sarafina. She further testified that her mother receives $300 a month in social security benefits.
August Kalal, a branch manager of Great American Federal Savings, testified that Bellwood Savings and Loan was merged into Great America Federal Savings. He stated that on September 16, 1976, $29,326.40 was withdrawn from an account at Bellwood that had Sarafina Rumoro's name on it. Further, on this same date, plaintiff withdrew $6,713.93 from her own account at this bank. A check was then issued by the bank to her for $34,706.26, which was endorsed by her and the Harris Trust and Savings from the First Federal Savings and Loan Association of Westchester. Additional testimony revealed that a check payable to plaintiff was drawn on Bellwood Savings and Loan and endorsed to Clifton Hall Real Estate Company in the amount of $6,000.
Robert Dostal testified that he is vice-president and comptroller of First Federal Savings and Loan of Westchester. He testified that title to certain property in Elmhurst, Illinois, was taken in joint tenancy by Mario and Minnie Amendola. They brought to the closing the sum of $34,706.26.
Richard Kates testified that there was an invoice from Prairie Material Sales for the delivery of ready-mix cement to plaintiff's home. He stated that a notation on the back of the invoice indicated that the cement was to be used "for drive." He further testified that ready-mix cement is not used for plastering walls, and the exact amount of the invoice was $1,536.16.
After the hearing, the court entered an order on May 17, 1979, finding that plaintiff took $34,706.26 from the incompetent's funds at Bellwood Savings and Loan for the purchase of her home. Further, that she took $6,000 from the incompetent's funds and deposited this amount as earnest money towards the purchase of her home, and that $1,536.16 of the incompetents funds was used to pay for a concrete driveway at her home, and additionally, that $2,300 from the incompetent's funds was given to Joseph Rumoro. The court ordered her removed as conservator of the estate of Sarafina Rumoro. Moreover, she was ordered to provide a complete accounting of the incompetent's estate and to turn over all assets of the incompetent to the clerk of the court. The order denied her compensation for the support and care of the incompetent because of her improper conduct. A post-trial motion was denied.
Plaintiff contends that her removal as conservator was improper and contrary to the Probate Act (Ill. Rev. Stat. 1977, ch. 110 1/2, pars. 23-2, 23-3(a)). Defendant asserts that the conservator has wasted or mismanaged the estate and could be removed as conservator on the court's own motion. We agree with plaintiff's contention.
The Probate Act provides that a representative of an estate may be removed for causes enumerated under section 23-2. Section ...