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12/15/88 In Re Estate of Burgeson (Estate of Zella Burgeson

December 15, 1988



Patrick Murphy, Public Guardian, Appellant, v.

Sheldon Kirshner, Appellee)

532 N.E.2d 825, 125 Ill. 2d 477, 126 Ill. Dec. 954 1988.IL.1802

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Henry Budzinski, Judge, presiding.


JUSTICE RYAN delivered the opinion of the court.


Patrick T. Murphy, the public guardian for Cook County, filed a petition to vacate portions of two orders entered during probate proceedings in the estate of Zella Burgeson. One such order approved the final account of the executor, including the disbursement of fees to respondent, Sheldon Kirshner, the executor's attorney. The other order discharged a special administrator who had been appointed by the court upon Murphy's petition. This order contained a finding that the special administrator had conducted a thorough investigation of allegations of wrongdoing that Murphy had made against Kirshner, and that he had found no impropriety on Kirshner's part.

These orders were entered on October 18, 1985. Approximately four months later, Murphy, who had not received notice of the entry of the orders, sought to have them vacated pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401). The circuit court denied the petition on the grounds that Murphy lacked standing and that he failed to exercise due diligence in bringing the petition. The appellate court, with one Justice Dissenting, affirmed that decision based on the standing issue. (163 Ill. App. 3d 233.) We granted Murphy's petition for leave to appeal (107 Ill. 2d R. 315).

Zella Burgeson, the deceased, was an elderly woman who lived alone in a Chicago condominium. In May 1982, other residents of her building wrote to John Hounsom, Burgeson's brother and later executor of her estate, expressing their concern for her welfare. They informed him that Burgeson was growing senile, and was burning food on the stove, leaving the gas ignited and forgetting about it, misplacing her bills and generally becoming unable to take care of her own affairs. The neighbors expressed concern that Burgeson could be taken advantage of by "some unscrupulous person." John Hounsom resided, and still resides, in Missouri.

Hounsom apparently contacted Sheldon Kirshner, an attorney who had done some legal work for Burgeson in the past. Six months after the letter from Burgeson's neighbors, Kirshner had her sign a broad power of attorney, giving Kirshner the power to provide for Burgeson's medical needs, arrange for housekeeping services, pay all her expenses and pay his own fees, all without supervision. Kirshner signed as a witness to the document and notarized it himself.

By 1984 the neighbors were again expressing concern, this time via letters to Kirshner. He had purportedly hired a "companion" for Burgeson, who was to perform housekeeping and other duties. Despite that fact, the neighbors informed Kirshner that Burgeson was wandering in the lobby naked, had urinated in the lobby and that the odors emanating from her apartment were overwhelming. Neighbors who assisted Burgeson back to her apartment discovered that it was in a "shocking" state of disarray -- the sink, counter and tables were littered with dirty dishes, garbage containers overflowed, the bathtub was filled with standing dirty water and the toilet had not been cleaned in some time. The letters also pointed out that the other building residents had been complaining to Kirshner without success for several months.

In July 1984, the police arrested Burgeson's companion, who had been hired by Kirshner, for attempting to cash an allegedly forged Burgeson check at a Jewel food store. Kirshner later requested that charges be dropped against the companion, who promptly disappeared and has not been heard from since. Over a two-month period prior to her arrest and disappearance, the companion allegedly took approximately $4,000 from Burgeson's accounts by cashing various checks. The record does not indicate that Kirshner took any steps to recover any of that money or property.

One of the officers who arrested the companion then went to Burgeson's home. She testified that the place was filthy, and that pornographic literature and sexual devices -- presumably belonging to the companion -- were found in the bedroom. Burgeson herself was found half-sitting, half-lying on a sofa. She was ...

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