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06/20/89 In Re Estate of Francis H. Wagner

June 20, 1989

IN RE ESTATE OF FRANCIS H. WAGNER, DECEASED (NORMA E.


Before that issue need be addressed, we must first consider the respondent's motion to dismiss the appeal on the ground that the petitioner, as administrator, is not a party aggrieved by the court's order and, therefore, lacks standing to bring this appeal. The case principally relied upon by the respondent is In re Estate of Tingos (1979), 72 Ill. App. 3d 703, 390 N.E.2d 1349. In that case, an executor appealed from an order requiring him to make partial distribution of the estate's assets to two heirs and legatees. The executor contended that the order was in error because it failed to require a refunding bond. The appellate court dismissed the appeal, making the following observation:

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

Wagner, Adm'r with the Will Annexed of Francis H.

Wagner, Petitioner-Appellant, v.

Federal Deposit Insurance Corporation et al.,

Respondents-Appellees)

540 N.E.2d 1005, 184 Ill. App. 3d 882, 133 Ill. Dec. 139 1989.IL.930

Appeal from the Circuit Court of Cook County; the Hon. Arthur C. Perivolidis, Judge, presiding.

APPELLATE Judges:

JUSTICE EGAN* delivered the opinion of the court. BILANDIC, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE EGAN

The petitioner, Norma E. Wagner, the widow of Francis H. Wagner, became the administrator with the will annexed of her husband's estate. Among the claims made against the estate were those of the Internal Revenue Service for certain income tax deficiencies. Since she and her husband had filed joint returns for the years questioned by the IRS, she paid some of them, as well as claims from the Illinois Department of Revenue. She did not file any claim individually for contribution from the estate. She did, however, file a declaratory judgment complaint against the estate in her capacity of administrator seeking a ruling that would permit her to recover individually as a third-class claimant for payments that she had made and might be required to make in the future to the IRS and as a sixth-class claimant for payments made or to be made to the Illinois Department of Revenue.

The Federal Deposit Insurance Corporation , a seventh-class claimant against the estate, filed a response to the declaratory judgment complaint. Although entitled a "response," since it raises only questions of law and seeks dismissal of the complaint, we deem it to be a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). One part of the response alleged that the complaint was insufficient in form in that it did not have certain documents attached. That part of the response would be brought under section 2-615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-615); but that argument is not an issue here, although the respondent has made a passing reference to it.

The trial court dismissed the complaint, ostensibly on the ground that it constituted a claim and was filed too late. Since the complaint was dismissed on the pleadings, the well-pleaded allegations will be taken as true, contrary to the respondent's argument. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790.) The petitioner and Francis Wagner had been married for 32 years at the time of his death on May 24, 1985; and throughout their marriage they had always filed joint tax returns. She contributed little or no income during their marriage, and she did not concern herself with her husband's business arrangements. She always signed the joint income tax returns prepared by her husband's accountant without material knowledge of the facts presented in them. The income tax returns for the years ending December 31, 1971-1976, were audited by the IRS regarding the deductibility of certain investments made by her husband. Additionally, the income tax returns for the years ending December 31, 1977, 1978 and 1980 as well as subsequent years were audited with respect to the deductibility of her husband's interest in a particular company.

Her husband died in May 1985; and on November 4, 1985, the IRS assessed tax deficiencies totaling $361,000 after disallowing various deductions and credits arising from her husband's ...


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