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04/27/89 In Re Estate of Sidney H. Whitaker

April 27, 1989

IN RE ESTATE OF SIDNEY H. WHITAKER, DECEASED (LA SALLE


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

National Bank, Ex'r of the Estate of Sidney H.

Whitaker, Deceased, Respondent-Appellant, v.

Sidney H. Whitaker, Petitioner-Appellee (William H. Barber

et al., Respondents))

538 N.E.2d 174, 182 Ill. App. 3d 420, 130 Ill. Dec. 963 1989.IL.613

Appeal from the Circuit Court of Putnam County; the Hon. James M. Bumgarner, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. SCOTT and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The La Salle National Bank (Bank) appeals from a trial court order granting summary judgment in favor of Sidney Whitaker (Whitaker), whom the Bank owes $56,834.07 as a result of its improper management of the estate of Whitaker's uncle (also named Sidney H. Whitaker). The Bank contends the court should have entered judgment against it only in its capacity as executor of the estate (not in its individual capacity) and should not have ordered interest to be paid on the amount owed. We modify a portion of the judgment and otherwise affirm.

The uncle died testate on November 3, 1981, leaving no descendants, and on December 15, 1981, the Bank was appointed executor of the estate. The will provided that the testator's property was to be placed in trust, with income from the trust paid to his widow until her death. The will further directed the trustee to thereafter distribute the principal of the trust to the nephew, Whitaker. The widow renounced the will on March 19, 1982, and as a result she was to receive one-half of the estate in fee and Whitaker was to receive the other half in fee. Ill. Rev. Stat. 1987, ch. 110 1/2, par. 2-8(a).

During its administration of the estate, the Bank incorrectly allocated $14,602.17 of the Federal estate tax to the widow and $142,073.48 of the tax to Whitaker, and it has since acknowledged that the Federal estate tax should have been apportioned equally. Although the estate had sufficient funds on hand with which to pay the tax, the Bank requested Whitaker to advance $44,423.24 as his share of the estate tax. On August 17, 1982, Whitaker made the payment to the Bank. The estate tax was increased following an Internal Revenue Service audit, and Whitaker received another request for payment from the Bank. On August 29, 1983, Whitaker advanced an additional $31,237.06 to the Bank. During its administration of the estate, the Bank requested Whitaker to advance other sums, none of which are relevant for purposes of this appeal. By 1985, when the Bank rendered its final accounting, Whitaker had paid $148,974.28 to the estate pursuant to the Bank's requests, while the Bank had collected only $5,405.15 from the widow.

Whitaker filed objections to the final accounting and specifically noted the unequal apportionment of the Federal estate tax liability. The Bank filed an amended final account and report, which disclosed that all of the estate's assets had been disbursed, but did not correct the unequal apportionment of the estate tax liability. Whitaker filed objections to the amended account, again raising the issue that he was overcharged by the executor and requesting that his distributive share be increased.

In the meantime, on June 26, 1985, the widow died, leaving a will which bequeathed the residue of her estate to her nieces and nephews. The Bank also served as executor of the widow's estate, and it appears that many of the assets of the widow's estate have been disbursed. A majority of the widow's beneficiaries filed ...


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