Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re Estate of Kime

OPINION FILED APRIL 21, 1981.

IN RE ESTATE OF VANCE KIME, DECEASED. — (ALICE FLOYD, PETITIONER-APPELLANT,

v.

RAYMOND KIME ET AL., RESPONDENTS-APPELLEES.)



APPEAL from the Circuit Court of Kankakee County; the Hon. EDWARD A. McINTIRE, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Litigation in the administration of the estate of Vance Kime has again resulted in an appeal to this court. (See In re Estate of Kime (1976), 42 Ill. App.3d 505, 356 N.E.2d 350.) In this appeal, petitioner Alice Floyd seeks review of various orders entered by the Circuit Court of Kankakee County in the estate proceeding, after remand from the prior appeal. We shall address the specific issues raised after setting forth the factual background essential to an understanding of the disputed matters.

Alice Floyd is a daughter of Vance Kime and she had instituted citation proceedings against her kinsmen, respondents Raymond Kime, Gary Kime, and Carroll Eastman. The citation proceedings were based upon allegations that certain grain and livestock in possession of respondents were in fact owned by the decedent Vance Kime at his death, and not by a partnership between Vance Kime and the respondents. The circuit court, on October 21, 1975, entered its order in the citation proceeding and found that the property was owned by Vance Kime and not by the partnership. The judgment order directed the executors of the estate to inventory the property at issue as part of the estate. The respondents appealed the judgment and this court affirmed the action of the circuit court (42 Ill. App.3d 505).

After remandment for further proceedings, petitioner Alice Floyd filed a motion on May 4, 1979, seeking to have attorney Edwin Sale removed as attorney for the executor. The basis of that motion was the presence of an alleged conflict of interest on the part of attorney Sale in his representation of the executors as well as the respondents in the citation proceeding. The same day, petitioner Floyd also filed objections to the final account in the estate proceeding. She requested that the final account be stricken because of the alleged conflict of interest on the part of attorney Edwin Sale. She also objected to that lack of information or mention in the final account concerning certain prejudgment interest allegedly due the estate on the value of the property which had been the subject of the citation proceeding.

On June 4, 1979, petitioner Floyd filed a petition seeking attorneys' fees and reimbursement of costs from the estate, based upon an alleged benefit to the estate arising as a result of the services of her attorney, James Walker, in the citation proceedings. The basis on which the petition seeking fees and costs was placed was the so-called "equitable fund" doctrine. See Maynard v. Parker (1977), 54 Ill. App.3d 141, 369 N.E.2d 352.

An additional objection to the final account was filed on June 22, 1979, wherein Floyd alleged that the final account failed to accurately reflect the full value of the additional property inventoried as a result of the prior citation proceedings.

Critical to certain issues involved in this appeal are the orders of the circuit court which determined the issues raised by petitioner Floyd in the above set forth motion, petition and objections. The circuit court entered an order on August 20, 1979, with respect to certain matters then pending in the estate. In response to petitioner's motion to remove attorney Sale, because of the alleged conflict of interest, the circuit court found that removal was not clearly warranted at that time. However, the court did order that a special administrator be appointed to represent the estate on the hearing, then pending, on petitioner Floyd's petition for attorney's fees and costs. In directing appointment of a special administrator for that hearing, the court stated its awareness that animosities had developed between the distributees and their counsel. Hearing on the petition for fees was to be in September. Also in the August 20, 1979, order was the court's finding that the question of post-judgment interest had been settled by agreement of the parties. So far as the objection that had been raised to the correctness of the valuation of citation-recovered property, the court directed the special administrator to review and correct the final report, if correction was necessary, and to submit a revised final report, incorporating the decision of the court on interest and any revised valuations. No appeal was taken from any part of the August 20, 1979, order.

The court entered another pertinent order on November 28, 1979, after the hearing on the petition for fees and costs had been concluded. In the order of November 28, 1979, the court discussed and then rejected the argument by petitioner Floyd and her attorney for fees and costs from the estate as a result of an alleged benefit received by the estate in the citation proceedings. The petition for fees and costs was denied, and further hearing was set on remaining issues. No appeal was taken from the order of the court on November 28, 1979, which denied petitioner's claim for fees and costs from the estate.

On January 11, 1980, after further hearings, the court entered an order addressing other objections raised by petitioner Floyd concerning the final account. With respect to the objection based upon attorney Edwin Sale's alleged conflict of interest, which was also the basis for the petition to remove Sale, the court found that the objection was not well founded, and the objection was overruled. Petitioner's other objections to the final account, including that based upon the allegedly incorrect valuation, were also overruled. The court then ordered the special administrator to submit his petition for fees, and the special administrator was also directed to make distribution of the estate's assets in accordance with the final account, after amendment of the final account to reflect an award of fees to the special administrator and the interest due on Alice Floyd's distributive share. No appeal was taken from any part of this order by the circuit court.

On February 13, 1980, a supplemental final report of the executor was filed in circuit court. Objections to the supplemental final report were thereafter filed by Alice Floyd on March 6, 1980. Objection was made that the supplemental report was based upon the final account which had been previously prepared by attorney Edwin Sale. Petitioner again argued that final account should have been stricken because of the alleged conflict of interest on the part of Edwin Sale, and that, therefore, supplemental final report, based upon the final account, should be stricken. Further objection was made that the supplemental final report did not mention and include prejudgment interest due the estate from the respondents in the citation proceeding. This objection was based upon section 2 of the Interest Act. (See Ill. Rev. Stat. 1979, ch. 74, par. 2.) Petitioner Floyd also again objected to the failure of the report to make any provision for payment of her attorney's fees, based upon application of the "fund doctrine" to the benefit allegedly conferred in the citation proceeding. Petitioner also made objection to the valuation in the supplemental final account respecting the property inventoried as a result of the citation proceeding. Other objections were made but are not pertinent to the issues raised on appeal.

The court, on May 27, 1980, entered its order disposing of the objections raised by Alice Floyd to the supplemental final report of the executor. The court found that all of the objections had been ruled upon previously, more than 30 days prior to the filing of the objections. The court stated that no motions for rehearing on those rulings had been filed, nor had other relief concerning them been requested. In concluding that all issues had been previously decided more than 30 days prior to the filing of objections, the court specifically noted its orders of January 11, 1980, November 28, 1979, and August 20, 1979. Accordingly, the court granted pending motions to dismiss and strike the objections by Alice Floyd. In addition, in the order of May 27, the court accepted the supplemental final report, as amended, and approved it for distribution. Thereafter, on June 26, 1980, petitioner Alice Floyd filed her notice of appeal.

In that notice of appeal, Alice Floyd lists six orders over which she seeks appellate review:

"(a) Order of May 27, 1980 striking and dismissing Alice Floyd's Objections to the Supplemental ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.