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In Re Estate of Polley

OPINION FILED DECEMBER 28, 1982.

IN RE ESTATE OF HANS W. POLLEY, DECEASED. — (CITIZENS AND SOUTHERN NATIONAL BANK OF MACON, GEORGIA, TRUSTEE UNDER THE LAST WILL OF GERTRUDE POLLEY, DECEASED, PETITIONER-APPELLEE AND CROSS-APPELLANT,

v.

KRYSTYNA REGINA STELMACH POLLEY, EX'R OF THE ESTATE OF HANS W. POLLEY, RESPONDENT-APPELLANT AND CROSS-APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Benjamin E. Novoselsky, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Decedent Hans Polley's first wife, Gertrude Polley (Gertrude), died testate on October 9, 1963, a resident of Georgia. In her last will she named decedent executor and gave him one portion of her estate "absolutely and in fee simple." He was also given a life estate in the second portion, with the remainder to Citizens and Southern National Bank of Macon, Georgia (Bank), as trustee under specified terms and conditions. Two years after Gertrude's death, decedent married respondent, Krystyna Polley (Krystyna). Decedent died testate in July 1978, a resident of Cook County, naming Krystyna as executor and leaving her his residuary estate.

The Bank filed a petition in decedent's estate to recover shares of stock or the proceeds of their sale, which decedent originally held as life tenant under Gertrude's will, but had since reregistered in his own name. After an evidentiary hearing, the circuit court of Cook County entered judgment in the Bank's favor and directed Krystyna to turn over to the Bank various shares of stock allegedly belonging to the remaindermen under Gertrude's will. Both parties appeal.

The issues raised by Krystyna on appeal include whether: the circuit court misconstrued certain provisions of Gertrude's will; the circuit court erred in precluding introduction of certain evidence pertaining to decedent's illness and his need to encroach on the corpus of the life estate assets; the findings of the circuit court were against the manifest weight of the evidence; and the Bank should have disqualified itself as ancillary executor of decedent's estate. The issue on cross-appeal by the Bank is whether the circuit court properly denied the Bank's motion for attorney fees and costs.

Item II of Gertrude's will dated May 4, 1961, divided her estate into two equal portions. Item III provided:

"The first portion divided as provided in Item II, I give, bequeath and devise unto my husband absolutely and in fee simple.

The second portion divided as provided in Item II, I give, bequeath and devise unto my husband for life with remainder to the Citizens and Southern National Bank, Macon, Georgia, as trustee under the terms and conditions and for purposes specified in paragraph 2, subparagraphs (a) through (f) of Item IV hereof. During his lifetime my husband as life tenant shall be entitled to receive all the income from this portion at such intervals as he may determine. My husband shall also have full power without the order of any court whatsoever to encroach upon the corpus of the property held by him as life tenant for his support in his accustomed manner of living, including the power to encroach upon it for medical, dental, hospital and nursing expenses and expenses of invalidism."

Item IV of the will identified the remaindermen of decedent's life estate trust to be distributed after his demise.

Item V of Gertrude's will specified, in part:

"My executor, my husband, as life tenant, and my trustee shall each have full power and authority to manage and control my estate, any trust property, and any property held by my husband as life tenant in such manner as each respectively deems fit and proper with full power to sell, mortgage or dispose of all or any portion thereof, free of all limitations, publicly or privately, for cash or on credit, including the power in my husband as life tenant to sell, exchange or encumber the fee simple title to any property so held by him, all without the approval or order of any court or other authority whatsoever, the proceeds to stand in place of such property."

Decedent became seriously ill and in 1976 he reregistered certain stock certificates held in his name as life tenant into his own name and he used the proceeds from the sale of other life tenancy stock to purchase stock, which was registered in his own name, the identities of which will be discussed later in this opinion. After a specific bequest to a Georgia church, in his will decedent left the remainder and residue of his estate to Krystyna. The original inventory filed in decedent's estate listed, inter alia, a schedule of common stocks having an estimated value of $260,270.38.

At trial, the Bank endeavored to show that decedent's estate inventoried specific items of property belonging to the estate of Gertrude. In particular, the Bank introduced into evidence two written ledgers which were assertedly maintained by decedent on a regular basis to record stock transactions in his own name and transactions in his name as life tenant under Gertrude's will. The ledgers, Petitioner's Exhibits Nos. 2 and 3, respectively, identify the certificates that decedent reregistered from his name as life tenant to his individual name:

100 Shares of Southern ...


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