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Weiss v. Weiss





Appeal from the Circuit Court of Kane County; the Hon. John A. Krause, Judge, presiding.


Emil F. Weiss died testate; a codicil to his will named his daughter, Dorothy M. Weiss, executor. Emil's will devised and bequeathed all of his real and personal property in equal shares to his four children: Dorothy, Richard and Robert, and Marilyn Nowak. The codicil empowered Dorothy, as executor, without order of court:

"* * * (a) to settle claims in favor of or against my estate; (b) to sell at public or private sale any real or personal property owned by me at the time of my death, without application to or confirmation by any court; and (c) to make distribution of my estate wholly or partly in cash or kind, and the determination of my executor as to the value of any property distributed in kind shall be conclusive."

This consolidated appeal arose after the trial court overruled Richard, Robert, and Marilyn's objections to Dorothy's final account and report, and after the court later authorized her to defend the appeal using estate funds upon her petition for the court's instructions on that matter.

At the hearing on the objections to the final account, Dorothy was called to testify under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60, recodified as Ill. Rev. Stat. 1981, ch. 110, par. 2-1102) and the following facts were revealed. Emil's attorney, Leon Weiss (a cousin), predeceased him, as did Emil's wife seven months earlier. Dorothy was unmarried, and resided in the family home in Aurora with her parents before their deaths. Her married sister, Marilyn, lived in Wisconsin; her brothers, Robert and Richard, lived, respectively, in Shreveport, Louisiana, and Aurora, Illinois. Leon Weiss had been handling Emil's wife's estate and when Leon died, the file was passed on to attorney Peter Grometer. Upon Emil's death, Grometer was consulted by the four heirs concerning the estate. A dispute arose between Dorothy and her sister and brothers concerning how long she would be allowed to stay rent-free in the family home. Dorothy requested four months; the others felt three months was a reasonable amount of time. Dorothy, a teacher, indicated the additional month would allow her to stay until June and school would be out for the summer, so she would have time to consult some financial people about whether she could afford to buy the house and whether it was a wise move.

Dorothy neither denied or affirmed that she had a conversation with attorney Grometer in which she told him that she was "going to go elsewhere for a lawyer to whom [sic] will protect my interests." Dorothy eventually secured the services of attorney Oliver DeBartolo.

She denied she consulted with attorney DeBartolo about her own personal interests as well as the affairs of the estate. She testified the controversy was between her brothers and sister on one hand, and herself as executor on the other.

The arguing began the night of her father's burial; the controversy about the personal property was that "[she] wanted certain things and [her brothers and sister] wanted certain things * * *," causing her "many sleepless nights."

The other major controversy was about the sale of the house. The price of the house and its sale to Dorothy was agreed upon in a "Weiss Family Settlement Agreement" which was drafted by attorney William Murphy, who represented Robert, Richard and Marilyn. The agreement was signed by Dorothy individually and as executor. She testified she never consulted with attorney DeBartolo as the buyer of the house, only in her capacity as seller. They discussed whether there was clear title, DeBartolo obtained a title commitment, attended the closing, and took the deed to Geneva to remove some title exceptions, and he recorded the deed. She represented herself at the closing. From the date of her father's death to the present, she had not received a bill from DeBartolo for services rendered to her personally, nor did she expect to receive one.

She consulted with DeBartolo a "couple of times" when the family agreement was drafted and redrafted, but not concerning her individual interests except insofar as the discussion led to the hiring of Colonel James G. Quick, an auctioneer, who conducted a lottery in order to distribute the decedent's personal property. She recalled the lottery method was suggested either by her brother, Richard, or Colonel Quick himself. Colonel Quick's bill for $1,271 was not paid because both she and the other family members objected to the amount of the bill, and were not happy about it. Colonel Quick spent "no more than an hour" to appraise the furnishings, and then spent about 4 1/2 hours conducting the actual lottery. Dorothy agreed that in addition to the necessary filings and court appearances, her consultations with attorney DeBartolo concerned the division of the furniture, the family settlement agreement, and the sale of the house.

Dorothy testified the codicil to her father's will gave her unlimited authority to distribute the personalty. She resorted to Colonel Quick's services because there were "so many arguments it could never have been settled fairly any other way. [She] never knew of a fair way to settle it in the first place." She agreed that during the many, many discussions she had with her brothers and sister concerning the distribution, that DeBartolo was not present, nor did he consult with her about her financing plans to buy the house. She did not recall whether he had advised her about the amount of monthly rental she was to pay for living in the house; she said her brothers and sister set the rental fee. He advised her to get three appraisals on the house, and they compared them to see what a reasonable price for the house would be. She then negotiated the sale with the family through her brother, Robert, amidst "many, many miserable calls and constant threats from her family." She recalled that DeBartolo felt that the final price, $82,000 was "outlandish." An appraisal of the real estate appended to the decedent's State inheritance tax form showed the property was valued at between $72,000 and $75,000 in May 1980. She testified her brothers and sister did not respect her as executor and resented her being the executor.

Attorney DeBartolo told her she would be entitled to deeds from each of her brothers and sister and their respective spouses at the closing. He advised her as to whether she had clear title; she did not believe he had rendered her personally any advice, only in her capacity as executor. Attorney Grometer had advised the family that it would cost more to have a bank act as executor than if she were executor; also, Richard rejected Marilyn's suggestion that he be the executor. No objection was raised concerning Dorothy's fee as executor.

On recross-examination, Dorothy testified she did not discuss with DeBartolo the continuous threats and harassments she was subjected to by her family; she felt DeBartolo had been informed of the controversy by Mr. Grometer when the file was turned over.

Attorney DeBartolo testified and his time sheets on the Weiss estate were admitted in evidence. He stated there were instances when he discussed individual matters with Dorothy Weiss, but he deducted that time and only charged the estate for the time he spent on estate matters. He stated that although he advised her on individual matters, he was not charging her for that, and kept no separate time sheet. He could not estimate what percentage of the total time he spent on the estate was spent in connection with the division of personal property and the sale of the house, including the family settlement agreement. He stated he did not talk with attorney Murphy concerning any of the routine estate matters.

Attorney DeBartolo testified that just prior to the lottery, he prepared an interim accounting on the demand of Mr. Murphy's three clients. He made it clear to Dorothy at the outset that he would be representing her as the executor of the estate, not individually. After the closing, DeBartolo took the deed to the title company for recording and clearance of certain objections. He did not recall advising Dorothy on the language of the family settlement agreement; he relayed corrections or amendments from her to Murphy. He did not recall her ever discussing with him the threats or harassments she received from her family.

Dorothy's sister, Marilyn Nowak, testified that at an initial meeting with attorney Grometer, Dorothy said she had to find someone who would protect her personal interests. She also testified that at the meeting with Grometer the day after her father died, Dorothy was upset by Grometer's suggestion that three months was an adequate amount of time for her to either decide to buy the house or make arrangements to live elsewhere; Dorothy wanted a year ...

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