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08/31/89 In Re Estate of Eda M. Aschauer

August 31, 1989

IN RE ESTATE OF EDA M. ASCHAUER, DECEASED (EDITH ASCHAUER,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Objector-Appellee and Cross-Appellant, v.

Joseph H. Aschauer, Ex'r of the Will of Eda M. Aschauer,

Deceased, Respondent-Appellant and Cross-Appellee)

544 N.E.2d 71, 188 Ill. App. 3d 63, 135 Ill. Dec. 714 1989.IL.1351

Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

This appeal is taken from the circuit court of Sangamon County. The circuit court found the estate executor had acted imprudently and surcharged the executor for interest costs incurred during his administration of the estate. We agree the executor was imprudent but find the objector is precluded from raising objections on appeal which were not raised in the circuit court at the time each account was approved.

The decedent Eda M. Aschauer died on April 30, 1978, in Springfield, Illinois. She died testate leaving among her heirs her son Joseph, the executor of her will, and her daughter Edith, the objector in this case. Edith lived with her mother all of her life and during the last years of her mother's life was responsible for the care of her mother and the running of her mother's household and financial affairs.

Eda made several specific bequests to Edith. Among them were (1) $10,000, (2) approximately 70 acres of land in Sangamon County, (3) a life estate until Edith's marriage on approximately 150 acres in Sangamon County, including the family residence, and (4) a life estate until Edith's marriage in a one-third interest in the access road to the Sangamon County property. The remainder of the estate was to be divided among the children and grandchildren of Eda. This property included an undivided one-half interest in a 640-acre tract of land in Louisiana. The other one-half interest in the Louisiana property was already owned by Eda's heirs as beneficiaries of her husband's estate.

On May 29, 1978, letters testamentary were issued appointing Joseph as the executor of Eda's estate by the circuit court of Sangamon County.

THE LOUISIANA REAL ESTATE

On January 5, 1979, the executor and objector, as well as all other heirs, filed a petition in Louisiana to be put in possession of the one-half of the Louisiana property included in the estate. On that same day the judicial court of St. Landry Parish, Louisiana, granted the petition. This effectively distributed the Louisiana real estate to the heirs. Subsequent income from this property went to the individual heirs as owners, rather than to ...


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