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01/29/88 In Re Estate of John J. O'brien

January 29, 1988

IN RE ESTATE OF JOHN J. O'BRIEN, DECEASED (ROSEMARY


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

O'Brien, Executor-Appellant, v.

Neil F. Hartigan, Attorney General of Illinois,

Respondent-Appellee)

519 N.E.2d 969, 166 Ill. App. 3d 285, 116 Ill. Dec. 754 1988.IL.105

Appeal from the Circuit Court of Cook County; the Hon. Frank R. Petrone, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Rosemary O'Brien, executor of the estate and sister of John J. O'Brien, appeals from an order removing her as executor of the estate. Ms. O'Brien contends on this appeal that she was wrongfully removed as the executor of her brother's estate. We affirm the trial court's order.

On January 14, 1980, John J. O'Brien died testate. The residuary clause of his will bequeathed the remainder of his estate to a trust of which Ms. O'Brien was named trustee. The net income of the trust was to be divided between Father O'Brien and Ms. O'Brien, the decedent's brother and sister. Upon the deaths of Father O'Brien and Ms. O'Brien the trust estate was to go to the Society of the Divine Word, a charitable organization.

On June 4, 1980, Ms. O'Brien was issued letters of office and in November 1981, she filed an inventory for the estate. In the 1981 inventory Ms. O'Brien stated that at the time of decedent's death the value of his estate was $350,000. One year later, in response to her attorney's motion to withdraw as her counsel, Ms. O'Brien stated under oath that the approximate value of the estate was $266,000. Ms. O'Brien also stated that she had difficulty classifying the decedent's pension proceeds as an asset of the decedent's estate. Despite advice by her counsel that the decedent's pension proceeds could be legally payable to her only in her capacity as executor, Ms. O'Brien maintained that the proceeds should be paid personally to her. On March 13, 1985, the court on its own motion appointed a special administrator.

On March 20, 1985, the Attorney General petitioned to intervene in the estate proceedings and to compel an accounting. The petition asserted that no accounts had been filed, that Ms. O'Brien possessed and personally claimed $75,000 of the decedent's pension proceeds which allegedly belonged to the decedent's estate and that Ms. O'Brien incurred $25,000 in penalties for failure to timely file Federal estate tax returns and pay taxes due thereon.

On April 16, 1985, the court on its own motion ordered Ms. O'Brien to present and file an accounting. Ms. O'Brien failed to do so. On August 1, 1985, the Attorney General petitioned the court for a citation to remove Ms. O'Brien as executor, for a rule to show cause, and to compel an accounting by Ms. O'Brien. Relying on the same allegations as in the petition to intervene, the Attorney General further alleged that Ms. O'Brien failed to file an account as ordered by the court and that the penalties for failure to timely file and pay Federal taxes had increased by $10,000 to $35,000.

On August 1, 1985, the court ordered Ms. O'Brien to show cause on August 28, 1985, why she should not be removed as executor and directed her to produce all the records and documents concerning the estate on August 5, 1985. The court also issued a citation for removal of representative on August 1, 1985. On August 28, 1985, Ms. O'Brien appeared in court in response to the rule to show cause and the citation but she did not file a response or an accounting. After a hearing, the ...


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