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In Re Estate of Bajonski

OPINION FILED NOVEMBER 20, 1984.

IN RE ESTATE OF FLORIAN BAJONSKI (WILLIAM MANHART, PETITIONER-APPELLANT,

v.

ANDREW BAJONSKI, ADM'R OF THE ESTATE OF FLORIAN BAJONSKI, ET AL., RESPONDENTS-APPELLEES).



Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 8, 1985.

On November 1, 1983, the probate division of the circuit court entered an order granting the motions of Andrew Bajonski, administrator of the estate of Florian Bajonski, and Elizabeth Bajonski Harper, heir, to dismiss with prejudice the petition of William Manhart to complete contract of decedent. The court ruled, as a matter of law, that the contract entered into between Manhart and the decedent required the personal service of the decedent and, consequently, terminated upon his death.

Florian Bajonski died on December 18, 1979, and Andrew Bajonski was appointed administrator of the estate. An asset of the estate which forms the subject matter of this litigation is an oil painting known as "The Convinced St. Thomas." Manhart claims that, on December 15, 1978, prior to Florian Bajonski's death, he and Florian Bajonski had entered into an agreement that was modified on May 28, 1979, in reference to the painting. The agreement purports to give Manhart the exclusive right to sell the painting, receiving a percentage of the sale price as payment for his services. The pertinent provisions of the December 15, 1978, agreement provide as follows:

"I.F. Bajonski hereby give and grant William Manhart exclusive right of sale of my Rembrandt painting entitled [illegible-said to read "The Convinced St. Thomas]. The terms of such sale, encluding [sic] the price shall be subject to my acceptance, there of upon the closing of said sale I shall pay you from the proceeds 10% of gross net price.

/s/ Florian B. Bajonski."

The agreement was modified on May 28, 1979, as follows:

"In the above contract William Manhart and Florian Bajonski agree to raise the percentage to 20% as of May 28, 1979, due to the fact that William Manhart will be responsible for all expenses connected with this painting as of May 28, 1979. Exclusive begins as of May 28, 1979 and ends upon sale of painting.

/s/ William H. Manhart /s/ Florian B. Bajonski."

The record discloses that the primary purpose of the above agreements was to authenticate the painting as a work by the master Rembrandt and to then secure a buyer for the authenticated painting. Neither the authentication nor the sale were completed during the lifetime of Florian Bajonski. Manhart's petition to complete contract alleges expenditures of $13,613.66 prior to Bajonski's death, apparently spent by Manhart in his effort to authenticate the painting, and a total of $83,397.00 spent at the time the petition was filed on March 28, 1980.

Subsequent to Florian Bajonski's death on December 18, 1979, the administrator of his estate entered into a written agreement with Manhart on June 30, 1980, though neither of the copies in the record is signed or executed by either party. This agreement provides in part:

"Whereas, the Estate does not admit the enforceability or legal validity of the aforesaid purported agreements [Manhart's prior agreements with Florian Bajonski], but is nevertheless willing to establish a viable contractual relationship with Manhart."

The agreement also provided Manhart with the exclusive right to authenticate and sell the painting, similar in most respects to the prior agreements, at 20% commission. The duration of the agreement was two years ending July 1, 1982. The agreement further secured Manhart's right to his commission, under stated circumstances, if the painting was sold or donated after termination of the agreement.

On May 11, 1982, the administrator petitioned the circuit court for permission to allow Manhart to exhibit the painting at the World's Fair in Tennessee. The order granted Manhart permission to exhibit the painting and, during the exhibition of the painting, the agreement between the administrator and Manhart was ...


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