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In Re Estate of Denaro

OPINION FILED FEBRUARY 17, 1983.

IN RE ESTATE OF JEANETTE DENARO, A/K/A JEANETTE GERACE. — (WILLIAM LEAKAS, APPELLANT,

v.

ANGELA CAFAZZO ET AL., APPELLEES.)



Appeal from the Circuit Court of Cook County; the Hon. Bernard A. Polikoff, Judge, presiding. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Jeanette Denaro (decedent) died testate in 1976. Her will, which was admitted to probate on December 10, 1976, named decedent's niece and nephew as legatees; appellant William Leakas was named executor. The assets of the estate totaled approximately $26,000.

In 1980 decedent's niece wrote to the probate court judge to express her dissatisfaction with the administration of the estate. The court appointed Alvin R. Becker special administrator. Hearings on the unverified final account filed by Leakas were scheduled and continued repeatedly; finally the court removed Leakas as executor, appointed Becker administrator de bonis non with the will annexed, and ordered Leakas to deliver the assets of the estate to Becker.

Leakas appeals both his removal as executor and the order to deliver assets to Becker. In these two consolidated appeals Leakas argues that (1) the trial judge violated the supreme court's standards of judicial conduct by corresponding with decedent's niece without Leakas' knowledge; (2) the trial judge improperly denied him a continuance while he was on active duty in the United States Army; (3) the trial judge improperly denied his petition for a change of venue; (4) the citation to show cause why he should not be removed as executor was insufficient in that it failed to inform him of the reason for his removal; and (5) the trial court lacked jurisdiction to enter the order to deliver assets to the newly appointed administrator because Leakas had filed a notice of appeal of his removal as executor.

We affirm the decision of the trial court.

FACTS

Jeanette Gerace Denaro died on July 17, 1976, leaving a will naming William Leakas executor. Two legatees were named: decedent's niece, Angela Peppie Cafazzo, and nephew, Charles Cirrincione, both residents of Cincinnati, Ohio. The principal asset of the estate was an eight-unit apartment building in Chicago that had an estimated value of $29,000 when the will was admitted to probate on December 10, 1976. With the court's permission, Leakas subsequently sold the building for $22,000. The only other valuable items in the estate were $30 in cash, and jewelry and coins worth $758.25.

On June 2, 1980, Leakas notified the legatees that on July 15, 1980, he would present his final account to the probate court for approval. This was not done, but on June 9, 1980, one of the legatees, Angela Cafazzo, wrote the trial judge that Leakas' attorney had sent both legatees a voucher requesting that they acknowledge receipt of $936.08 as their shares in the distribution of the estate. Cafazzo refused to sign because she had not received the money. Cafazzo's letter to the judge criticized the actions and expenditures of Leakas and his attorney in administering the estate.

On October 28, 1980, Cafazzo again wrote to the probate court judge asking for a reply to her letter of June 9, and the judge responded on October 30 with a request that she furnish copies of documents relevant to the questions she had raised. Cafazzo sent the requested documents on November 1, 1980, and sent additional documents on November 12, stating at that time that in spite of the notice of account from Leakas, neither she nor her brother, the other legatee, had received a final accounting. On November 4, 1980, the trial judge notified Leakas' attorney that Leakas was to appear in court on November 20, 1980, to file his final account.

The judge began the November 20 proceedings by informing Leakas' counsel that Cafazzo had written to him, and he read the letters into the record. Leakas filed a final account unaccompanied by supporting vouchers, on November 21, 1980, and subsequently withdrew it. An amended final account was filed on December 5, 1980, also without vouchers. The account indicated total receipts of $24,906.10, disbursements of $22,180.21, distribution in kind of $758.25, and cash distribution to each legatee of $983.82. On November 21, 1980, the court appointed Alvin Becker special administrator and continued the matter until December 17, 1980. On December 12, 1980, the hearing on the final account was continued to January 29, 1981.

On December 30, 1980, the court entered an order granting leave to all parties in interest to file objections to the final account. Hearing on the matter was continued to March 16, 1981. Becker filed objections to the legatees' receiving a total of only $1,967.64 from an estate of $25,906.10, and to the fees and expenses of $10,005.47 requested by Leakas and his attorney.

Leakas subsequently requested and received three more continuances. When the last of these continuances was granted on Leakas' motion representing that he was on military duty and therefore unavailable, the court provided that the continuance was being granted with the understanding that Leakas and his commanding officer would present affidavits explaining Leakas' unavailability. This was not done, although in seeking yet another continuance Leakas did submit to the court a letter from his commanding officer stating that he was on active duty in Glenview, Illinois.

When Leakas failed to appear for a hearing on June 25, 1981, the court entered an order directing Becker, the special administrator, to prepare a citation to Leakas to show cause why he should not be removed as executor. Leakas was directed to appear on July 8, 1981. On that date Leakas filed a petition for change of venue, alleging that the trial judge was prejudiced against him and that he could not receive a fair hearing with respect to his administration of the estate. The trial judge denied the petition. Leakas filed a notice of appeal and, claiming that the trial court had accordingly lost jurisdiction, declined to participate further in the proceedings. On July 31, 1981, this court dismissed the appeal for want of an appealable order. The trial court continued the citation to remove Leakas as executor to August 7, 1981, and directed Leakas and his counsel to appear; they failed to do so, and requested another continuance.

On August 10, 1981, nunc pro tunc August 7, 1981, the trial court denied the requested continuance, removed William Leakas as executor, and appointed Alvin Becker administrator de bonis non with the will annexed. The court stated an account on behalf of Leakas (see Ill. Rev. Stat. 1981, ch. 110 1/2, par. 24-15) and ordered him to deliver to Becker on September 4, 1981, all the assets of the estate except those for which satisfactory vouchers were filed. On August 23, 1981, Leakas filed a notice of appeal from the citation for his removal, the denial of a change of venue, and his removal as executor. Leakas failed to appear on September 4 and failed to deliver the assets of the estate to Becker. Accordingly, on September 8, 1981, the trial court entered judgment in favor of Becker and against Leakas in the amount for which the court stated an account, $25,906.10. Leakas' motion to vacate this order was denied. Following Leakas' filing of a $26,000 appeal ...


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