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11/28/89 In Re Estate of Thomas Arthur Mcgloon

November 28, 1989

IN RE ESTATE OF THOMAS ARTHUR MCGLOON, DECEASED (EDNA MAE


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

McGloon, Claimant-Appellant, v.

James J. Zmigrocki, Ex'r, et al., Respondents-Appellees)

548 N.E.2d 438, 191 Ill. App. 3d 968, 139 Ill. Dec. 53 1989.IL.1832

Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE UNVERZAGT delivered the opinion of the court. NASH and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Claimant, Edna Mae McGloon (Edna), appeals from an order of the circuit court of Cook County dismissing her claim against the estate of Thomas Arthur McGloon. On appeal, Edna contends that she is entitled to be reimbursed by the estate for unpaid support.

The various pleadings and documents filed in this case indicate that Thomas Arthur McGloon died testate on August 8, 1987. He was survived by his wife, Edna, and his adult daughter, Marianne Williams. His will was admitted to probate, and James J. Zmigrocki was appointed independent executor. The will provides that Edna would receive 34% of the estate, Marianne would receive 22% of the estate, decedent's sister, Margaret, would receive 22%, and decedent's friend, Gladys Anthony, would receive 22%.

Edna filed a claim against the estate for $120,000. In her claim and memorandum in support, she alleges that she and decedent were married in 1942, decedent abandoned her in 1946, and, thereafter, decedent failed and refused to support her. She alleges that decedent made between $86,000 and $100,000 per year from 1982 to 1986, that she has lived on a small pension and social security since 1977, and that in recent years she has resided in subsidized housing. Edna claimed $2,000-per-month support for the five-year period immediately prior to decedent's death. She later modified her claim to reflect the amount actually expended by her for "necessaries" for the years in question, to wit, $37,459. Executor Zmigrocki and legatees Gladys Anthony and Margaret McGloon Smith filed motions to strike and dismiss Edna's claim. Following a hearing on the surviving spouse's award and the motions to dismiss Edna's claim, Edna was awarded $13,500 as surviving spouse, and the $37,459 claim was dismissed.

Edna appeals the dismissal of her claim for support, contending that a husband has a common-law duty to support his wife and provide her necessaries and decedent failed to fulfill that duty. She contends that decedent had an obligation to her, that an obligation which one must meet with one's own funds is a debt, and that an unsatisfied debt is an appropriate basis for a claim against an estate.

The executor and legatees (respondents) contend that section 15-1 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 15-1) provides the exclusive remedy for a spouse seeking a support award from a deceased spouse's estate. They contend that support or maintenance is a creature of statute and that Edna had statutory remedies for support that she could have pursued during decedent's lifetime. She did not pursue those remedies, however, and she never obtained a support order. In the absence of a court order for support entered during decedent's life, the respondents conclude, Edna has no cause of action against the estate for support allegedly due her during decedent's lifetime, and she is limited to a surviving spouse's award.

Edna responds that the statutory support provisions only provide for future or post-death support and her claim is for predeath support. She bases her claim on the common-law doctrine that a husband has a duty to supply his wife with necessaries. She contends that the existence of statutory support provisions does not affect the common-law duty and does not bar her action to enforce her common-law right to necessaries.

Edna relies heavily on the case of Bennett v. Bennett (1960), 27 Ill. App. 2d 24. In Bennett, the husband was the conservator of his incompetent wife's estate. The wife/ward was confined for a period of time in the Peoria State Hospital. As a result of this confinement, the Illinois Department of Public Welfare (the Department) filed a claim against her estate for the amount expended by the Department for her care. The probate court approved payment of $1,640 to the Department from the estate and also approved a $106 payment to the husband/ conservator to reimburse him for advances he had made "for clothing and other necessities" for the wife/ward. The wife/ward objected to the conservator's final report, contending that her husband, not her estate, was liable for the $1,640 cost of her confinement and the $106 in necessaries. She relied on the common-law proposition that a husband is responsible for his wife's necessaries. The appellate court agreed with the wife/ward and held that hospitalization falls within the category of necessaries, that a husband has a ...


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